Wednesday, March 22, 2006

Six inches too far, say the Lords

The British House of Lords delivered their judgement today in R (on the application of Begum (by her litigation friend, Rahman)) (Respondent) v. Headteacher and Governors of Denbigh High School (Appellants).

Shabina Begum, a pupil at Denbigh High School in Luton, a state maintained school with 79% Muslim enrolment, was contesting the school's right to enforce its dress code. The school, whose Head is a Bangladeshi woman of Muslim belief and which had several Muslim governors, had devised a dress code in consultation with local Islamic leaders for which the suggested dress for female muslim students which would conform with Islamic norms was the s(h)alwar kameez(e), a long tunic and trousers, together with an optional headscarf of specified type. Her father was deceased and her mother spoke no English at the time. On the first day of the autumn term (3 Sept 02) she attended the school wearing jilbab and accompanied by her brother and a friend who has not been identified in the documents I have so far read in the case. The Head being absent, the Deputy Head instructed her to change and return to school in uniform but she refused. According to Lord Bingham of Cornhill's judgement she considered it
the only garment which met her religious requirements because it concealed, to a greater extent than the shalwar kameeze, the contours of the female body, and was said to be appropriate for maturing girls. The respondent then left with her brother and the other young man. The young men said they were not prepared to compromise over this issue.
The school involved the Education and Welfare Service in trying to resolve the issue, as well as consulting again with local Islamic authorities. In the meantime, disquiet appears to have been expressed within the school community of the possibility of division within the Muslim community in the school, those continuing to opt for the current uniform being open to the charge of "not being modest enough".

However, a recurring theme in the case not only in the Lords but in the High Court seems to have been the insistence of "suing" for "rights", delivered in such vehemence and perceived aggressiveness that the school requested at one point that discussions not be had in person. Article 9.1 of the European Convention of Human Rights, as incorporated into British law via the Human Rights Act 1998, was the principle ground on which Ms. Begum and her advisers chose to seek redress.
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.
The case was lost in the High Court but won in the Court of Appeal (Lord Justice Brooke). The school appealed the latter judgement and Ms. Begum was represented in the Lords by Miss Cherie Booth QC. In their judgement today, the Lords unanimously reversed the Appeal Court. They relied heavily on Article 9's second section:
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.
The Lords pointed out that the European Court of Human Rights has generally upheld public-interest basis for state action in accordance with 9.2, such as in dress in Turkish universities (Şahin v. Turkey), working at times of religious prayer/obligation when other work is available and bans on religiously mandated animal slaughter in France when the meat could be sourced from Belgium where the method was legal. If you enroll, you accept the rules beforehand and must follow them thereafter. If you have alternatives, you use them.

In contrast, the Court of Appeal was deemed to have worked out it's own dispute resolution method and when the school failed to use the resolution the Court would have used they lost the appeal - a usual approach in judicial review. Lord Bingham's comment:
the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated.
Begum's appeal also failed on Article 2 grounds (right to education), the court accepting that the choices were with Ms. Begum - adhere to school dress or transfer. She opted to do neither until enrolling at another school two years later. Baroness Hale's concurring judgement contains some interesting background on female Muslim dress and its implications.

From a Canadian viewpoint, it is interesting that the judgement of the Supreme Court of Canada in Multani v. Commission scolaire Marguerite-Bourgeoys, (2006 SCC 6) in respect of the Canadian Charter of Rights and Freedoms was brought to the attention of their Lordships after the hearing of argument (the unanimous upholding of a Sikh student's right to carry a religious symbol in the form of a knife - kirpan - in his Quebec school) but did not cause any change in the judgement (at para 34).

There seems to be some controversy in respect of alleged links between Ms. Begum and Hizb ut-Tahrir, a radical Islamic group. (Sunday Times, 20 June 2004) This also involved the sacking by the Guardian of a trainee reporter who interviewed her (original article here) but did not disclose membership of Hizb ut-Tahrir.

A reader of headlines would take a far more radical view of the judgement - for example the International Herald Tribune's "British Court rules against Muslim attire" which looks more like the school secularisation in France than the upholding of a school dress code agreed with the local community. Indeed, this is the interesting part of the affair - multiculturalism assumes the answer to state/minority friction in areas such as crime, poverty, marginalisation is working with community leaders who will mediate on behalf of citizens who feel they have no access to the State directly. In this case, the community leaders' agreement with the school, and their role in its governance, was ignored by Shabina Begum and her family.

RTE (Realplayer) have a clip of Ms. Begum after the judgement, unable to understand the fuss about "six inches". Fortunately, the Lords realised that the taking of miles often follows the taking of inches.
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