Freedom of Thought Conscience and Religion in UK Law

(ii) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as 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 parents wish it to be administered in such circumstances because they consider it to be a more efficacious method of securing appropriate discipline. I do not think that it is appropriate to describe a belief that one measure is more effective than another as a philosophical or religious conviction even if the reason for holding that belief is that it is supported by a religious text.

Moreover even if that were appreciated, I have no evidence before me as to why it was felt justifiable to interfere with such rights. Without such evidence, it is impossible to say whether the response was a proportionate one. The court cannot find justification simply on the basis of counsel's assertion as to possible grounds which a state might be able to rely upon to justify the provisions in question.

The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. In particular, for its manifestation to be protected by article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. Article 9 is apt, therefore, to include a belief such as pacifism: Arrowsmith v United Kingdom (1978) 3 EHRR 218.

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. The Commission found (p 109) no interference with her article 9 right because (p 108)

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 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 62-67).

I accept that wearing a jilbab to a mixed school was, for her, a manifestation of her religion. 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. Her family had chosen that school for her with knowledge of its uniform requirements.