R (Begum) v Governors of Denbigh High School

The respondent, Shabina Begum, is now aged 17. She contends that the appellants, who are the head teacher and governors of Denbigh High School in Luton ("the school"), excluded her from that school, unjustifiably limited her right under article 9 of the European Convention on Human Rights to manifest her religion or beliefs and violated her right not to be denied education under article 2 of the First Protocol to the Convention. Bennett J, ruling on the respondent's application for judicial review at first instance, rejected all these contentions: [2004] EWHC 1389 (Admin); [2004] ELR 374. The Court of Appeal (Brooke, Mummery and Scott Baker LJJ), reversing the judge, accepted each of them: [2005] EWCA Civ 199; [2005] 1 WLR 3372. The appellants, with support from the Secretary of State for Education and Skills as intervener, submit that the judge was right and the Court of Appeal wrong.

It is important to stress at the outset that this case concerns a particular pupil and a particular school in a particular place at a particular time. It must be resolved on facts which are now, for purposes of the appeal, agreed. The House is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be a most inappropriate question for the House in its judicial capacity, and it is not one which I shall seek to address.

The agreed facts

The school is a maintained secondary community school taking pupils of both sexes aged 11-16. It has a very diverse intake, with 21 different ethnic groups and 10 religious groupings represented. About 79% of its pupils are now Muslim, the percentage having fallen from 90% in 1993. It is not a faith school, and is therefore open to children of all faiths and none. Its high percentage of Muslim pupils is reflected in its exemption from the ordinary duty of maintained schools to secure an act of collective worship each day wholly or mainly of a broadly Christian character.

The governing body of the school always contained a balanced representation of different sections of the school community. At the time of these proceedings, four out of six parent governors were Muslim, the chairman of the Luton Council of Mosques was a community governor and three of the LEA governors were also Muslim. The school makes a significant contribution to social cohesion in a catchment area that is racially, culturally and religiously diverse.

The head teacher, Mrs Yasmin Bevan, was born into a Bengali Muslim family and grew up in India, Pakistan and Bangladesh before coming to this country. She has had much involvement with Bengali Muslim communities here and abroad, and is familiar with the codes and practices governing the dress of Muslim women. Since her appointment as head teacher in 1991, when it was not performing well, the school has come to enjoy an outstanding measure of success.

The head teacher believes that school uniform plays an integral part in securing high and improving standards, serving the needs of a diverse community, promoting a positive sense of communal identity and avoiding manifest disparities of wealth and style. The school offered three uniform options. One of these was the shalwar kameeze: a combination of the kameeze, a sleeveless smock-like dress with a square neckline, revealing the wearer's collar and tie, with the shalwar, loose trousers, tapering at the ankles. A long-sleeved white shirt is worn beneath the kameeze and, save in hot weather, a uniform long-sleeved school jersey is worn on top. It has been worn by some Muslim, Hindu and Sikh female pupils.

In 1993 the school appointed a working party to re-examine its dress code. The governors consulted parents, students, staff and the Imams of the three local mosques. There was no objection to the shalwar kameeze, and no suggestion that it failed to satisfy Islamic requirements. The governors approved a garment specifically designed to ensure that it satisfied the requirement of modest dress for Muslim girls. Following the working party report the governors, in response to several requests, approved the wearing of head-scarves of a specified colour and quality.

The school went to some lengths to explain its dress code to prospective parents and pupils. This was first done in the October of the year before a pupil would enter, and again at an open evening in the July before admission. A letter written to parents reminded them of the school's rules on dress.

The respondent is Muslim. Her father died before she entered the school, and at the material times she lived with her mother (who did not speak English and has since died), a sister two years older, and a brother (Rahman), five years older, who is now her litigation friend. The family lived outside the school's catchment area, but chose it for the respondent and her elder sister, and were told in clear terms of the school's uniform policy. For two years before September 2002 the respondent wore the shalwar kameeze happily and without complaint. It was also worn by the respondent's sister, who continued to wear it without objection throughout her time at the school.

On 3 September 2002, the first day of the autumn term, the respondent (then aged nearly 14) went to the school with her brother and another young man. They asked to speak to the head teacher, who was not available, and they spoke to the assistant head teacher, Mr Moore. They insisted that the respondent be allowed to attend the school wearing the long garment she had on that day, which was a long coat-like garment known as a jilbab. They talked of human rights and legal proceedings. Mr Moore felt that their approach was unreasonable and he felt threatened. He decided that the respondent should wear the correct school uniform and told her to go home, change and return wearing school uniform. His previous experience in such situations, with one exception, was that pupils always complied. He did not believe he was excluding the respondent, which he had no authority to do, but did not allow her to enter the school dressed as she was, this being (it was said) 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.

On the same day the head teacher, who had been informed of the incident, wrote to the respondent's mother and brother. After setting out an account of the incident, she stated that the uniform had been agreed with the governing body, and that it was her view, and that of the LEA, that the school's uniform rules were more than reasonable in taking into account cultural and religious concerns. She noted that the respondent had not attended school because she had been removed by those representing her and stated that the respondent was required to attend school dressed in the correct uniform. She further stated that the matter would be referred to the Education Welfare Service (the "EWS") should the respondent fail to attend. The letter concluded by inviting the respondent to raise the issue with the chair of the governors if the family had any further concerns. The school was anxious to establish contact with the respondent's guardian and accordingly, on 4 September 2002, a member of the support team telephoned her house and spoke to a male member of the family who said that the respondent had seen her solicitor and was going to sue the school. On 5 September 2002 Mr Moore telephoned and spoke to the respondent's brother. Mr Moore inquired why the respondent was not in school. The respondent's brother told Mr Moore that he (the brother) was not prepared to let the respondent attend school unless she was allowed to wear a long skirt. On 11 September 2002 the school sent a letter concerning the respondent's non-attendance to the family and on 27 September 2002 the school referred the matter to the EWS.

On 22 October 2002 solicitors on behalf of the respondent wrote to the head teacher, the governors and the LEA, contending that the respondent had been "excluded/suspended" from school "because she refused to remove her Muslim dress comprising of a headscarf and long over garment". The letter contended that the respondent believed that it was an absolute obligation on her to wear that dress and she was not prepared to take it off. It also alleged that the school's decision to exclude the respondent breached her human rights under UK and European human rights law. Articles 9, 8 and 14 and Article 2 of Protocol 1 of the Convention were set out and reasons given explaining why the school's actions had breached the respondent's human rights. On 23 October 2002 Mr Ahmed of the EWS met the respondent and her brother and emphasised the importance of the respondent attending school. Other attempts were made by the EWS to get...