R (Williamson) v Secretary of State for Education & Employment
|England & Wales
|MR JUSTICE ELIAS
|15 November 2001
| EWHC 960 (Admin)
|Case No: CO/1762/01
|Queen's Bench Division (Administrative Court)
|15 November 2001
 EWHC 960 (Admin)
The Honourable Mr Justice Elias
Case No: CO/1762/01
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Mr John Friel
(instructed by Fiona Bruce & Co for the Claimant)
Mr. Hugo Keith
(instructed by The Treasury Solicitors for the Defendant)
This case raises an issue of some importance. It is whether Section 548 of the Education Act 1996, as amended by Section 131 of the Schools Standards and Framework Act 1998, completely abolishes the use of corporal punishment in independent schools. The Claimants submit that it does not do so even when read without any reference to their human rights. But they also say, in the alternative, that if the effect of the section would be to prevent them from sending their children to schools which practice corporal punishment, then it would infringe certain of their human rights. Accordingly they submit that the provision would need to be construed, if possible, to give effect to those rights: see section 3 of the Human Rights Act 1998. The defendant concedes that it could be so interpreted if it were necessary to do so to respect their Convention rights. Given the very broad interpretative power conferred upon the court to achieve that objective (see the decision of the House of Lords in , I consider that the concession was rightly made. Accordingly, there is no question in this case of the court having to consider making a declaration of incompatibility pursuant to Section 4 of the Human Rights Act.
The Claimants in this case are respectively head teachers, teachers and parents of certain Christian schools. They submit that the imposition of physical discipline by teachers, administered in accordance with the law, is part and parcel of their Christian belief. In order to further those beliefs, they have set up and supported various Christian schools in the independent sector, which are conducted in accordance with this view of Christian education.
The Secretary of State does not question the genuineness of the Claimants' beliefs, nor the fact they are motivated by their religious views. Certain Biblical passages are relied upon by the claimants in support of their stance, particularly from the Book of Proverbs. For example in Chapter 13, verse24 it states:
"He who spares the rod hates his son,
but he who loves him is diligent to discipline him".
Plainly not all Christians – I suspect not many – would consider that this and other such texts require corporal punishment to be an integral part of the child's education. But that is how the Claimants interpret them.
I should add, as Mr. Friel, counsel for the Claimants, has been at pains to emphasise, that the Claimants are asserting no more than that the teacher should be allowed to administer reasonable chastisement. To describe this form of corporal punishment as "beating", with its overtones of cruel Dickensian schoolmasters inflicting punishment with malicious glee, is as tendentious as it is inaccurate. "Smacking" is closer to the mark. The Claimants perceive the need for corporal punishment as a way of ensuring a system of discipline which they consider to be conducive to the moral well-being of the child and necessary to inculcate a proper respect for Christian values.
Of course, the Claimants accept that any discipline should not be such as to contravene Article 3 of the Convention, which forbids the imposition of inhuman or degrading treatment or punishment. However, the European Court of Human Rights has accepted that the infliction of corporal punishment does not necessarily infringe that Article. It all depends on the circumstances, including the nature and severity of the punishment and its manner of execution: see the judgments of the Court in . and . . The Claimants say that provided the punishment is lawful and does not infringe Article 3, it is their human right to have their children taught in a school in which discipline of that kind is imposed. (They accept, as I understand it, that the teachers would have to be willing to impose such punishment where necessary, and that the state would not be obliged to require it of them.)
Two preliminary observations.
Before analysing the arguments, I make two preliminary observations. First, it is important to emphasise at the outset that the wisdom of the legislation is not in issue in these proceedings. It is not the role of the court to question legislation on the grounds that it is foolish, unfair, discriminatory or illiberal. The Claimants say that it all of these things. No doubt many parents who do not share the Claimants' Christian convictions also take the view that the legislation is misguided. They may consider that alternative disciplinary sanctions such as detention or the withholding of privileges (e.g. banning the child from games or other activities) can often be, and seem to a child to be, a harsher punishment, potentially psychologically more damaging, and possibly even more degrading than the instant administration of reasonable chastisement. But these are considerations that are to be taken into account when the proposed legislation is under discussion; they are irrelevant to the proper construction of the Act once it is passed. Unless the Claimants' human rights are engaged, the courts must give effect to Parliament's intentions as embodied in the language of the legislation. It is only if the Claimants can show that they are entitled to send their children to schools which administer corporal punishment as an exercise of their human rights that the legislation should, where possible, be construed so as to give effect to those rights even if that is plainly at odds with Parliament's clearly expressed intention. As I have said, such a construction would be possible here.
The second preliminary point is this. It is a trite but none the less important observation that the court is not concerned with the merits of the dispute. In this case, for example, it is not concerned to ask whether it considers corporal punishment to be desirable or undesirable. Of course, judges are not robots and they will have their fair share of values and assumptions, passions and prejudices, some of them deeply rooted. But they must try as strenuously as they can to ignore entirely their own personal views and assumptions and to determine the case strictly according to the legal merits: this is what the concept of judgment according to law means. It was, of course, ever thus; but I hope I am alive to the fact that the court must be particularly vigilant to prevent personal values and attitudes from insidiously tainting the process of judgment when Convention rights are under consideration. This is because the Convention rights are framed in broad terms; the alleged protected acts are often, in a broad sense, political, and not infrequently controversial; and the scope for judicial lawmaking is generally greater than would be afforded to judges deciding traditional common law disputes.
The meaning of the section 548.
I first consider the meaning of the provision wholly independently of any human rights considerations.
The first piece of legislation restricting the right of teachers to inflict even moderate chastisement was section 47 of the Education (No.2) Act 1986. Subsection (1) was as follows:
"Where, in any proceedings, it is shown that corporal punishment has been given to a pupil by or on the authority of a member of the staff, giving the punishment cannot be justified on the ground that it was done in pursuance of a right exercisable by the member of staff by virtue of his position as such."
By subsection (5), a pupil was defined in a way which excluded, broadly, children in the independent sector of education. It was therefore plain that the abolition was not complete.
This section was reproduced in almost identical form by section 548 of the Education Act 1996. That in turn was amended by section 131 of the School Standards and Framework Act 1998. This substitutes a new section 548 into the 1996 Act. The relevant provisions are as follows:
Subsection (1) provides:
"Corporal punishment given by, or on the authority of, a member of staff to a child-
(a) for whom education is provided at any school, or
(b) for whom education is provided, otherwise than at school, under any arrangement made by a local education authority, or
(c) for whom specified nursery education is provided otherwise than at school
cannot be justified in any proceedings on the ground that it was given in pursuance of a right exercisable by the member of staff by virtue of his position as such."
Some assistance as to what acts of corporal punishment are caught by the section is provided by subsection (2):
""Subsection (1) applies to corporal punishment so given to a child at any time, whether at the school or other place at which education is provided for the child, or elsewhere."
The concept of corporal punishment is defined by subsection (4):
"Any reference to giving corporal punishment to a child is to doing anything for the purpose of punishing that child (whether or not there are other reasons for doing it) which, apart from any justification, would constitute battery."
There is a wide definition given to "member of staff" in subsection (6):
"Member of Staff, in relation to the child concerned, means-
(a) any person who works as a teacher at a school or other place at which education is...
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