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La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo di una sentenza della House of Lords in cui si analizza la questione delle libertà di religione, dei simboli religiosi,... Vedi di più

Esame di Diritto Costituzionale Avanzato docente Prof. F. Cerrone

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conflicted with his religious convictions, he was free to relinquish his post. An application by a child punished for refusing to attend a National Day parade in contravention of her beliefs as a

Jehovah's Witness, to which her parents were also party, was similarly unsuccessful in Valsamis v Greece (1996) 24 EHRR 294. It was held (para 38) that article 9 did not confer a right to

exemption from disciplinary rules which applied generally and in a neutral manner and that there had been no interference with the child's right to freedom to manifest her religion or belief. In

Stedman v United Kingdom (1997) 23 EHRR CD 168 it was fatal to the applicant's article 9 claim that she was free to resign rather than work on Sundays. The applicant in Kalaç, above,

paras 28­29, failed because he had, in choosing a military career, accepted of his own accord a system of military discipline that by its nature implied the possibility of special limitations on

certain rights and freedoms, and he had been able to fulfil the ordinary obligations of Muslim belief. In Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27,

para 81, the applicants' challenge to the regulation of ritual slaughter in France, which did not satisfy their exacting religious standards, was rejected because they could easily obtain

supplies of meat, slaughtered in accordance with those standards, from Belgium.

24. This line of authority has been criticised by the Court of Appeal as overly restrictive (Copsey v WWB Devon Clays Ltd 2005 EWCA Civ 932, [2005] 1CR 1789, paras 31­39, 44­66), and in

Williamson, above, para 39, the House questioned whether alternative means of accommodating a manifestation of religions belief had, as suggested in the Jewish Liturgical case, above,

para 80, to be "impossible" before a claim of interference under article 9 could succeed. But the authorities do in my opinion support the proposition with which I prefaced para 23 of this

opinion. Even if it be accepted that the Strasbourg institutions have erred on the side of strictness in rejecting complaints of interference, there remains a coherent and remarkably consistent

body of authority which our domestic courts must take into account and which shows that interference is not easily established.

25. In the present case the respondent's family chose for her a school outside their own catchment area. It was a school which went to unusual lengths to inform parents of its uniform policy.

The shalwar kameeze, and not the jilbab, was worn by the respondent's elder sister throughout her time at the school, and by the respondent for her first two years, without objection. It was

of course open to the respondent, as she grew older, to modify her beliefs, but she did so against a background of free and informed consent by her and her family. It is also clear that there

were three schools in the area at which the wearing of the jilbab was permitted. The respondent's application for admission to one of these was unsuccessful because the school was full,

and it was asserted in argument that the other two were more distant. There is, however, no evidence to show that there was any real difficulty in her attending one or other of these schools,

as she has in fact done and could no doubt have done sooner had she chosen. On the facts here, and endeavouring to apply the Strasbourg jurisprudence in a reasonable way, I am of

opinion that in this case (unlike Williamson, above, para 41, where a different conclusion was reached) there was no interference with the respondent's right to manifest her belief in practice

or observance. I appreciate, however, that my noble and learned friends Lord Nicholls and Lady Hale of Richmond incline to a different opinion. It follows that this is a debatable question,

which gives the issue of justification under article 9(2) particular significance.

Justification

26. To be justified under article 9(2) a limitation or interference must be (a) prescribed by law and (b) necessary in a democratic society for a permissible purpose, that is, it must be directed

to a legitimate purpose and must be proportionate in scope and effect. It was faintly argued for the respondent that the school's uniform policy was not prescribed by law, but both the judge

(para 78) and the Court of Appeal (paras 61, 83 and 90) held otherwise, and rightly so. The school authorities had statutory authority to lay down rules on uniform, and those rules were very

clearly communicated to those affected by them. It was not suggested that the rules were not made for the legitimate purpose of protecting the rights and freedoms of others. So the issue is

whether the rules and the school's insistence on them were in all the circumstances proportionate. This raises an important procedural question on the court's approach to proportionality

and, depending on the answer to that, a question of substance.

27. In para 75 of his leading judgment in the Court of Appeal, Brooke LJ set out a series of questions to be asked and answered by a decision­maker resolving an issue raised under article 9.

He observed (para 76) that the school did not approach the matter in that way at all. Since, therefore, the school had approached the issues from an entirely wrong direction, it could not

resist her claim for declarations that it had wrongfully excluded her, that it had unlawfully denied her the right to manifest her religion and that it had unlawfully denied her access to suitable

and appropriate education in breach of article 2 of the First Protocol to the Convention (para 78). But (para 81) nothing in the judgment should be taken to mean that it would be impossible

for the school to justify its stance if it were to reconsider its uniform policy in the light of the judgment and decide not to alter it in any significant respect. He offered guidance (para 81) on

matters the school would need to consider. Mummery and Scott Baker LJJ (paras 88, 90, 92) expressly associated themselves with this approach.

28. The Court of Appeal's procedural approach attracted the adverse criticism of some informed commentators: see Poole, "Of headscarves and heresies: The Denbigh High School case

and public authority decision making under the Human Rights Act" [2005] PL 685; Linden and Hetherington, "Schools and Human Rights" [2005] Educational Law Journal 229; and, for a

more ambivalent appraisal, Davies, "Banning the Jilbab: Reflections on Restricting Religious Clothing in the Light of the Court of Appeal in SB v Denbigh High School (2005) 1.3 European

Constitutional Law Review 511. This procedural approach also prompted the Secretary of State to intervene in order to correct what he boldly described, in his written case, as a fundamental

misunderstanding of the Human Rights Act. The school also, endorsing the criticisms made in the first two articles cited, have submitted that the Court of Appeal erred in failing to decide the

proportionality issue on the merits. For the respondent, it was argued that the Court of Appeal was right to approach the proportionality issue on conventional judicial review lines, and to

quash the decision (irrespective of the merits) if the decision­maker was found to have mis­directed itself in law. Attention was drawn to other cases in which the Court of Appeal had adopted

a similar approach, such as Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139, [2001] UKHRR 1150, paras 19­24, R(D) v Secretary of State for the Home

Department [2003] EWHC Admin 155, [2003] 1 FLR 979, paras 20­23, and R (Goldsmith) v Wandsworth London Borough Council [2004] EWCA Civ 1170, (2004) 148 Sol Jo LB 1065. The

House was referred to Chapman v United Kingdom (2001) 33 EHRR 399, para 92, where the Strasbourg court said:

"In particular, [the court] must examine whether the decision­making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to

the individual by Article 8."

29. I am persuaded that the Court of Appeal's approach to this procedural question was mistaken, for three main reasons. First, the purpose of the Human Rights Act 1998 was not to

enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the

domestic courts of this country and not only by recourse to Strasbourg. This is clearly established by authorities such as Aston Cantlow and Wilmcote with Billesley Parochial Church Council

v Wallbank [2003] UKHL 37, [2004] 1 AC 546, paras 6­7, 44; R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, paras 18­19; and R (Quark

Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57, [2005] 3 WLR 837, paras 25, 33, 34, 88 and 92. But the focus at Strasbourg is not and has never

been on whether a challenged decision or action is the product of a defective decision­making process, but on whether, in the case under consideration, the applicant's Convention rights

have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an

adverse decision, the aspect addressed by the court in the passage from its judgment in Chapman quoted above. But the House has been referred to no case in which the Strasbourg Court

has found a violation of Convention right on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is

fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning,

and action may be brought under section 7(1) only by a person who is a victim of an unlawful act.

30. Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The

inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493, para 138, and the new approach required under the 1998 Act was described by Lord

Steyn in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paras 25­28, in terms which have never to my knowledge been questioned. There is no

shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v

Ministry of Defence, Ex p Smith [1996] QB 517, 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time

(Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, paras 62­67). Proportionality must be judged objectively, by the court (Williamson, above, para 51). As Davies

observed in his article cited above, "The retreat to procedure is of course a way of avoiding difficult questions". But it is in my view clear that the court must confront these questions, however

difficult. The school's action cannot properly be condemned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and

properly so.

31. Thirdly, and as argued by Poole in his article cited above, pages 691­695, I consider that the Court of Appeal's approach would introduce "a new formalism" and be "a recipe for

judicialisation on an unprecedented scale". The Court of Appeal's decision­making prescription would be admirable guidance to a lower court or legal tribunal, but cannot be required of a

head teacher and governors, even with a solicitor to help them. If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a

challenger's task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision­making process that led to it.

32. It is therefore necessary to consider the proportionality of the school's interference with the respondent's right to manifest her religious belief by wearing the jilbab to the school. In doing

so we have the valuable guidance of the Grand Chamber of the Strasbourg court in Sahin, above, paras 104­111. The court there recognises the high importance of the rights protected by

article 9; the need in some situations to restrict freedom to manifest religious belief; the value of religious harmony and tolerance between opposing or competing groups and of pluralism and

broadmindedness; the need for compromise and balance; the role of the state in deciding what is necessary to protect the rights and freedoms of others; the variation of practice and tradition

among member states; and the permissibility in some contexts of restricting the wearing of religious dress.

33. The respondent criticised the school for permitting the headscarf while refusing to permit the jilbab, for refusing permission to wear the jilbab when some other schools permitted it and for

adhering to their own view of what Islamic dress required. None of these criticisms can in my opinion be sustained. The headscarf was permitted in 1993, following detailed consideration of

the uniform policy, in response to requests by several girls. There was no evidence that this was opposed. But there was no pressure at any time, save by the respondent, to wear the jilbab,

and that has been opposed. Different schools have different uniform policies, no doubt influenced by the composition of their pupil bodies and a range of other matters. Each school has to

decide what uniform, if any, will best serve its wider educational purposes. The school did not reject the respondent's request out of hand: it took advice, and was told that its existing policy

conformed with the requirements of mainstream Muslim opinion.

34. On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an

inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and

success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to

the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed

knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that

they are best placed to exercise it, and I see no reason to disturb their decision. After the conclusion of argument the House was referred to the recent decision of the Supreme Court of

Canada in Multani v Commission scolaire Marguerite­Bourgeoys [2006] SCC 6. That was a case decided, on quite different facts, under the Canadian Charter of Rights and Freedoms. It

does not cause me to alter the conclusion I have expressed.

Article 2 of the First Protocol

35. The House has considered article 2 of the First Protocol to the Convention in some detail in Abdul Hakim Ali v Head Teacher and Governors of Lord Grey School [2006] UKHL 14. I would

refer to, but need not repeat, that analysis.

36. The question is whether, between 3 September 2002 and the date, some two years later, of the respondent's admission to another school, the appellants denied her access to the

general level of educational provision available in this country. In my opinion they did not. A two­year interruption in the education of any child must always be a subject for profound regret.

But it was the result of the respondent's unwillingness to comply with a rule to which, as I have concluded, the school were entitled to adhere, and, since her religious convictions forbade

compliance, of her failure to secure prompt admission to another school where her religious convictions could be accommodated.

Exclusion

37. In para 60 of his judgment the judge said:

"What to my mind is abundantly clear is that the [school] earnestly and sincerely wanted the [respondent] to attend school. It put no impediment or obstacle in the way of the [respondent].

What the [school] did insist on was that when the [respondent] came to school she was dressed in accordance with the school uniform policy, as indeed she had been happy to do for the two

years prior to September 2002. The reality of the situation was and still is that the [respondent], entirely of her own volition, chose not to attend Denbigh High School unless the [school]

agreed to her wearing the jilbab. The [school] did not so agree. The [respondent] had a choice, either of returning to school wearing the school uniform or of refusing to wear the school

uniform knowing that if she did so refuse the [school] was unlikely to allow her to attend. She chose the latter. In my judgment it cannot be said the actions or stance of the school amounted

to exclusion, either formal, informal, unofficial or in any way whatsoever."

The Court of Appeal, in para 24, held that "The school undoubtedly did exclude the [respondent]". Since nothing in my opinion turns on this question I will address the question very briefly.

38. It is, however, clear that the school did not intend to exclude the respondent in the statutory sense of that word, nor believe that it was doing so. It is therefore entirely unsurprising that it

did not in any way invoke the statutory procedures to which reference is made in Ali's case. For the school the situation was analogous to that considered in Spiers v Warrington Corporation

[1954] 1 QB 61, 66, where Lord Goddard CJ said:

"The headmistress did not suspend this child at all. She was always perfectly willing to take her in; all that she wanted was that she should be properly dressed. Suspending is refusing to

admit to the school; in this case the headmistress was perfectly willing to admit the girl but was insisting that she be properly dressed."

39. To the respondent, of course, the case appeared differently: she was being effectively shut out from attending the school by the school's insistence on her compliance with an unjustified

rule with which it knew she could not comply. That is not a view of the case which I have accepted, but had it been the correct view (as in another case, on quite different facts, it might) there

could be force in the contention that she was, de facto, excluded. It may be, and of course one hopes, that a situation of this kind is a very rare occurrence. I am not, however, sure that it is

adequately covered by the existing rules.

40. For these reasons, and those given by Lord Hoffmann, with which I agree, I would allow the appeal, set aside the order of the Court of Appeal, and restore the order of the judge. I would

invite written submissions on costs within 14 days.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

41. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann. Your Lordships would allow this appeal. So

would I. Your Lordships' reasons are twofold: (1) the school's refusal to allow Shabina Begum to wear a jilbab at school did not interfere with her article 9 right to manifest her religion and,

even if it did, (2) the school's decision was objectively justified. I agree with the second reason. I am not so sure about the first. I think this may over­estimate the ease with which Shabina

could move to another, more suitable school and under­estimate the disruption this would be likely to cause to her education. I would prefer that in this type of case the school is called upon

to explain and justify its decision, as did the Denbigh High School in the present case.

LORD HOFFMANN

My Lords,

42. Shabina Begum, whom I shall call Shabina, is a Muslim, born in the United Kingdom to parents who came from Bangladesh. In September 2000, at the age of nearly 12, she enrolled at

the Denbigh High School in Luton. It is a maintained secondary school for children of both sexes. Although the family lived outside the school's catchment area, her elder sister went there

and so Shabina joined her.

43. About 80% of the children at the school are Muslim but a number of other religions and ethnic groups are represented. Yasmin Bevan, who comes from a Muslim Bengali family, has

been head teacher since 1991. Under her leadership, standards of education and behaviour at the school have greatly improved. She has consistently been supported by the governors,

among whom Muslims are strongly represented.

44. The head teacher considers that a school uniform promotes a sense of communal identity which helps to maintain standards. In devising a suitable uniform, the school went to immense

trouble to accommodate the religious and cultural preferences of the pupils and their families. There was consultation with parents, students, staff and the Imams of the three local mosques.

One version of the uniform was the shalwar kameez (or kameeze), a sleeveless smock­like dress with a square neckline, worn over a shirt, tie and loose trousers which taper at the ankles. A

lightweight headscarf in navy blue (the school colour) was also permitted.

45. For her first two years at the school, Shabina wore the shalwar kameez without complaint. At some stage, however, she decided that it did not accord with her religious beliefs. It appears

from the interesting discussion of Muslim theology which extends over 17 paragraphs of the judgment of Brooke LJ in the Court of Appeal that this is a minority but, among its adherents,

sincerely and strongly held opinion.

46. The evidence does not make it clear when Shabina decided that wearing a shalwar kameez would be unacceptable. Her brother Shuweb Rahman says that "as Shabina became older

she took an increasing interest in her religion" and through her interest in religion "discovered that the shalwar kameez was not an acceptable form of dress for Muslim women in public

places." But the school administration knew nothing of her discovery until 3 September 2002, the first day of the school year, when she, escorted by her elder brother and another man,

turned up at school wearing a long shapeless black gown known as a jilbab. They asked to see the head teacher. She was not available and they were referred to the assistant head teacher

Mr Moore, who teaches mathematics. He, one would imagine, was having a busy morning but the men told him at length and in forceful terms that Shabina was entitled under human rights

law to come to school wearing a jilbab and that unless she was admitted they would sue the school. Mr Moore told Shabina to go home and change.

47. Shabina left and did not return. The school wrote to her family explaining that she was obliged by law to attend school but would not be admitted to Denbigh High unless she wore the

school uniform. The result was stalemate. There was a lengthy and fruitless correspondence between solicitors. The school said that the uniform complied with Muslim rules and Shabina's

lawyers said that it did not. The Educational Welfare Officer tried unsuccessfully to persuade Shabina to accept the uniform and go back. In October 2003, when she had been out of school

for a year, she applied to Challney Girls' School, a single sex school where wearing a jilbab would not have been a religious necessity. But she had left it late and the school was full. She

was offered a right of appeal and the Educational Welfare Officer offered to support it but her brother says he decided that there was no point in appealing. The Educational Welfare Officer

also offered to support applications to Putteridge High School and Rebia Girl's School, two other local schools where she could have worn a jilbab, but the offer was declined. Shabina

remained out of school until September 2004, when she enrolled at Putteridge High School.

48. On 13 February 2004 Shabina commenced judicial review proceedings against the head teacher and governors of Denbigh High, claiming that the decision not to admit her while wearing

a jilbab was unlawful because it infringed two of her Convention rights: the right to "manifest [her] religion … in … practice and observance" (article 9) and the right not to "be denied the right

to education" (article 2 of the First Protocol). Bennett J dismissed the claim but the Court of Appeal made a declaration that her rights under article 9 had been infringed: [2005] 1 WLR 3372.

The school appeals to your Lordships' House and the Secretary of State for Education and Skills has been given leave to intervene and had made submissions in support of the appeal.

49. The first question is whether Shabina's right to manifest her religion was infringed. If it was infringed, the school would have to justify the infringement on one of the grounds listed in

article 9.2:

"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."

On the other hand, if there was no infringement, no justification is required.

50. I accept that wearing a jilbab to a mixed school was, for her, a manifestation of her religion. The fact that most other Muslims might not have thought it necessary is irrelevant. But her

right was not in my opinion infringed because there was nothing to stop her from going to a school where her religion did not require a jilbab or where she was allowed to wear one. 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. Common civility also has a place in the religious life. Shabina's discovery

that her religion did not allow her to wear the uniform she had been wearing for the past two years created a problem for her. Her family had chosen that school for her with knowledge of its

uniform requirements. She could have sought the help of the school and the local education authority in solving the problem. They would no doubt have advised her that if she was firm in her

belief, she should change schools. That might not have been entirely convenient for her, particularly when her sister was remaining at Denbigh High, but people sometimes have to suffer

some inconvenience for their beliefs. Instead, she and her brother decided that it was the school's problem. They sought a confrontation and claimed that she had a right to attend the school

of her own choosing in the clothes she chose to wear.

51. The jurisprudence of the European Court is in my opinion clear that in such circumstances there is no infringement of article 9. In Jewish Liturgical Association Cha'are Shalom Ve

Tsedek (2000) 9 BHRC 27 an association of ultra­orthodox Jews complained that their rights under article 9 had been infringed because French law did not allow them to slaughter animals in

accordance with their particular opinion of what Jewish ritual required. They could however have imported suitably slaughtered meat from Belgium or come to an agreement with the ordinary

Jewish ritual slaughterers to produce meat according to their specifications. The opinion of the majority of the Grand Chamber was that there had been no infringement:

"[80] In the court's opinion, there would be interference with the freedom to manifest one's religion only if the illegality of performing ritual slaughter made it impossible for ultra­orthodox Jews

to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable."

52. "Impossible" may be setting the test rather high but in the present case there is nothing to show that Shabina would have even found it difficult to go to another school. Until after the

failure of her application for judicial review before Bennett J on 15 June 2004 she did not seriously try because she and her family were intent upon enforcing her "rights".

53. Likewise in Kalaç v Turkey (1997) 27 EHRR 552 a judge­advocate in the Turkish air force was compulsorily retired because he had involved himself in the activities of a religious sect,

inconsistently with his duties under military law to guarantee the secular character of the Turkish state. The European Court found that there had been no infringement of his rights under

article 9. He was free to manifest his religion in any way he pleased but not as a member of the armed forces.

54. The same expectation of accommodation, compromise and, if necessary, sacrifice in the manifestation of religious beliefs appears from the cases on employees who found their duties

inconsistent with their beliefs. For example, Tuomo Kottinnen worked on the Finnish Railways. After five years he became a Seventh Day Adventist and declared that he could not work after

sunset on Fridays. After several incidents when he left with the early setting of the Finnish winter sun, his employers dismissed him. The Commission held that there had been no

infringement of his rights under article 9: Kontinnen v Finland (1996) 87 DR 68. It said (at p. 75) that "having found his working hours to conflict with his religious convictions, the applicant

was free to relinquish his post." The same principle has been applied in other cases: see Ahmad v United Kingdom (1981) 4 EHRR 126 and Stedman v United Kingdom (1997) 23 EHRR CD

168. In Copsey v WWB Devon Clays Ltd [2005] ICR 1789, a case in which a Christian employee objected to a new shift system which involved Sunday working, the Court of Appeal

examined these cases very carefully. The members of the court expressed some disquiet about the application of these cases when the employer had introduced new duties inconsistent

with the practice of the employee's religion or where the manifestation of his beliefs could easily have been accommodated. I say nothing about such cases because Shabina's family had

chosen to send her to a school which required uniform to be worn and her wish to manifest her religious belief could not have been accommodated without throwing over the entire carefully

crafted system.

55. I therefore agree with Bennett J (at paras 73­74) that there was no infringement of Shabina's rights under article 9. In the Court of Appeal Brooke LJ disagreed but did not explain why. He

simply said (at para 49) that because Shabina's belief was theologically tenable, it followed that her freedom to manifest her religion was being limited and it was for the school to justify that

limitation. He made no reference to any of the European cases to which I have mentioned or to the following highly relevant observations of Lord Nicholls of Birkenhead in R (Williamson) v

Secretary of State for Education and Employment [2005] 2 AC 246, 262, para 38:

"What constitutes interference [with the manifestation of religious belief] depends on all the circumstances of the case, including the extent to which in the circumstances an individual can

reasonably expect to be at liberty to manifest his beliefs in practice. In the language of the Strasbourg jurisprudence, in exercising his freedom to manifest his beliefs an individual 'may need

to take his specific situation into account' see Kalaç v Turkey (1997) 27 EHRR 552, 564, para 27. There a judge advocate in the air force was subjected to compulsory retirement on the

ground he was known to have 'unlawful fundamentalist tendencies' which infringed the principle of secularism on which the Turkish nation was founded. The court held this did not amount to

an interference with his rights guaranteed by article 9. In choosing to pursue a military career Kalaç accepted of his own accord a system of military discipline which by its nature implied the

possibility of limitations incapable of being placed on civilians."

56. Mummery LJ did refer to Ahmad v United Kingdom (1981) 4 EHRR 126 and Stedman v United Kingdom (1997) 23 EHRR CD 168 but distinguished them on the ground that it was not

relevant to compare Shabina's position with that of an employee who was free to leave his employment. He said, at p 3391, para 84:

"It is irrelevant to the engagement of article 9 that the claimant could have changed to a school which accommodated her religious beliefs about dress. Education at the school or at another

school was not a contractual choice. There was a statutory duty to provide education to the pupils. The school did not follow the proper statutory procedure for excluding her from education".

57. I must admit to finding this passage confusing. What does it matter whether going to another school was a "contractual choice"? It was a choice which she could have made. It is true that

there is a statutory duty to provide education, but not at any particular school: see the decision of your Lordships' House delivered today in Abdul Hakim Ali v Head Teacher and Governors of

Lord Grey School: [2006] UKHL 14. As for the statutory procedure, I shall return in due course to the question of whether Shabina was "excluded" from the school. But this case has at all

times been argued on the question of whether her Convention rights were infringed and not on whether there had been a failure to comply with domestic statutory procedures.

58. Even if there had been an infringement of Shabina's rights under article 9, I would, like the judge, have been of opinion that the infringement was justified under article 9.2. The school

was entitled to consider that the rules about uniform were necessary for the protection of the rights and freedoms of others. Bennett J had ample material for saying (at para 90):

"Denbigh High School is a multi­cultural, multi­faith secular school. The evidence adduced on behalf of the [school]…clearly establishes that the school uniform policy promotes a positive

ethos and a sense of communal identity… [T]here is no outward distinction between Muslim female pupils. Thus any division between those who wear the jilbab and those who wear the

shalwar kameez is avoided. Furthermore, it is clear from the evidence that there are a not insignificant number of Muslim female pupils at Denbigh High School who do not wish to wear the

jilbab and either do, or will, feel pressure on them either from inside or outside the school. The present uniform policy aims to protect their rights and freedoms…"

59. The Court of Appeal was referred to the decision of the European Court in Sahin v Turkey (2005) 41 EHRR 8, decided shortly after the judgment of Bennett J, which appeared strongly to

support his decision. Ms Sahin was excluded from lectures and examinations in the medical school of the University of Istanbul because she insisted upon wearing an Islamic headscarf, an

item of clothing forbidden by the University regulations. The Chamber presided over by Sir Nicholas Bratza unanimously dismissed the complaint. It assumed in her favour that her rights

under article 9 had been infringed (there was no other Turkish university which did not have the same rule) but held that the prohibition was justified under article 9.2. The court laid stress (at

p 131­132, paras 100­102) upon the margin of appreciation accorded to the national authorities:

"The Court observes that the role of the Convention machinery is essentially subsidiary. As is well established by its case law, the national authorities are in principle better placed than an

international court to evaluate local needs and conditions. It is for the national authorities to make the initial assessment of the 'necessity' for an interference, as regards both the legislative

framework and the particular measure of implementation...

Where questions concerning the relationship between state and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision­

making body must be given special importance. In such cases it is necessary to have regard to the fair balance that must be struck between the various interests at stake: the rights and

freedoms of others, avoiding civil unrest, the demands of public order and pluralism.

A margin of appreciation is particularly appropriate when it comes to the regulation by the Contracting States of the wearing of religious symbols in teaching institutions, since rules on the

subject vary from one country to another, depending on national traditions, and there is no uniform European conception of the requirements of 'the protection of the rights of others' and of

'public order'."

60. The Court went on to say that the Turkish Constitutional Court was entitled to consider the headscarf prohibition necessary to safeguard the principle of secularism which guaranteed

freedom of individual conscience, equality before the law, protection from external pressures and the rights of women. Since the judgment of the Court of Appeal, the decision in Sahin v

Turkey has been confirmed by the Grand Chamber (10 November 2005).

61. Brooke LJ considered the decision but said that the United Kingdom was very different from Turkey. It was not a secular state and had no written constitution. Schools were under a

statutory duty to provide religious instruction and (unless exempted) a daily collective act of worship.

62. These observations about the differences between the United Kingdom and Turkey seem to me to miss the point. Turkey has a national rule about headscarves, based on its constitution.

Its justification for the assumed interference with the manifestation of religious belief was therefore considered at the national level. In the United Kingdom, there is no national rule on these

matters. Parliament has considered it right to delegate to individual schools the power to decide whether to impose requirements about uniforms which may interfere with the manifestation of

religious beliefs. From the point of view of the Strasbourg court, the margin of appreciation would allow Parliament to make this choice.

63. In applying the Convention rights which have been reproduced as part of domestic law by the Human Rights Act 1998, the concept of the margin of appreciation has, as such, no

application. It is for the courts of the United Kingdom to decide how the area of judgment allowed by that margin should be distributed between the legislative, executive and judicial branches

of government. As Lord Hope of Craighead said in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380­381:

"The doctrine of the 'margin of appreciation' is a familiar part of the jurisprudence of the European Court of Human Rights. The European Court has acknowledged that, by reason of their

direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed to evaluate local needs and conditions than an international court…

This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the

Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these

principles will involve questions of balance between competing interests and issues of proportionality. In this area difficult choices may have to be made by the executive or the legislature

between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the

judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention."

64. In my opinion a domestic court should accept the decision of Parliament to allow individual schools to make their own decisions about uniforms. The decision does not have to be made

at a national level and national differences between Turkey and the United Kingdom are irrelevant. In applying the principles of Sahin v Turkey the justification must be sought at the local

level and it is there that an area of judgment, comparable to the margin of appreciation, must be allowed to the school. That is the way the judge approached the matter and I think that he

was right.

65. In criticizing the school's decision, Miss Booth QC (who appeared for Shabina) said that the uniform policy was undermined by Muslim girls being allowed to wear headscarves. That

identified them as Muslims and it would therefore make no difference if they could wear jilbabs. But that takes no account of the school's wish to avoid clothes which were perceived by some

Muslims (rightly or wrongly) as signifying adherence to an extremist version of the Muslim religion and to protect girls against external pressures. These are matters which the school itself

was in the best position to weigh and consider.

66. In the end, however, the Court of Appeal did not decide that the school could not justify its uniform policy. Brooke LJ said, at para 81, that the judgment "should [not] be taken as meaning

that it would be impossible for the school to justify its stance if it were to reconsider its uniform policy in the light of this judgment". But he thought that the school had infringed Shabina's

rights under article 9 because it had not reached its decision by an appropriate process of reasoning. It should have set itself an examination paper with the following questions:

1. Has the claimant established that she has a relevant Convention right which qualifies for protection under article 9(1)?

2. Subject to any justification that is established under article 9.2, has the Convention right been violated?

3. Was the interference with her Convention right prescribed by law in the Convention sense of that expression?


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo di una sentenza della House of Lords in cui si analizza la questione delle libertà di religione, dei simboli religiosi, del velo islamico a scuola e del diritto di istruzione.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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