R (Williamson) v Secretary of State for Education & Employment

JurisdictionUK Non-devolved
JudgeLORD BINGHAM OF CORNHILL,LORD NICHOLLS OF BIRKENHEAD,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date24 February 2005
Neutral Citation[2005] UKHL 15
Date24 February 2005
CourtHouse of Lords
Regina
and
Secretary of State for Education and Employment

and others

(Respondents)

ex parte

Williamson
(Appellant)

and others

[2005] UKHL 15

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,

1

I have had the benefit of reading the opinions of my noble and learned friends Lord Nicholls of Birkenhead and Lady Hale of Richmond. I agree with them both, and for the reasons they give I would dismiss this appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

2

Corporal punishment of children is a controversial subject. It arouses strong feelings, both for and against. In this country there is now a total ban on the use of corporal punishment in all schools. The claimants in these proceedings contend this ban is incompatible with their Convention rights under the Human Rights Act 1998.

3

The present state of the law has developed in stages over the last 20 years. In the 1970s two mothers, Mrs Campbell from Strathclyde and Mrs Cosans from Fife, objected to their children being subjected to corporal punishment in state schools. Their complaint to the European Court of Human Rights was upheld. The state had failed to respect their 'philosophical convictions' on this subject, contrary to article 2 of the First Protocol to the European Convention on Human Rights: Campbell and Cosans v United Kingdom (1982) 4 EHRR 293. That was in 1982. Parliament then changed the law, by the Education (No 2) Act 1986, section 47. Since 1987 school teachers in maintained schools (state schools) have had no right to administer corporal punishment to school pupils. This ban applied also to children attending non-maintained schools (independent schools) who received public funding, for instance, under the assisted places scheme.

4

In 1993, in response to the decision of the European Court of Human Rights in Costello-Roberts v United Kingdom (1993) 19 EHRR 112, Parliament intervened again. This time the intervention was aimed at the severity with which corporal punishment could be administered at school to children outside the scope of the 1986 Act, that is, privately-funded children at independent schools. Article 3 of the European Convention imposes on states a positive obligation to take steps to ensure individuals are not subjected to inhuman or degrading punishment. The steps taken by the state should provide effective protection, in particular, for children and other vulnerable individuals: Z v United Kingdom (2001) 34 EHRR 97, 131, para 73. In order to comply with this obligation Parliament enacted that corporal punishment of children could not be justified if it was 'inhuman or degrading': section 293 of the Education Act 1993. In deciding whether punishment is inhuman or degrading regard should be had to all the circumstances, including the reason for giving the corporal punishment, how soon after the event it was given, its nature, the manner and circumstances in which it was given, the persons involved, and its mental and physical effects.

5

The next stage in the development of the law was the extension of the ban on the use of corporal punishment to all pupils attending all types of school. That was in 1998. So now the ban applies to privately-funded children attending independent schools. It is this extension of the ban which is under challenge in these proceedings. Unlike Mrs Campbell and Mrs Cosans, the claimants in the present proceedings do not object to the use of corporal punishment. Quite the contrary: they support the use of corporal punishment and object to the statutory ban. So the present case raises the converse of the issue raised in the Campbell and Cosans case.

6

The statutory ban imposed in 1986 and extended in 1998 applies to corporal punishment given by school teachers and other members of staff at a school. It does not apply to corporal punishment given by a child's parent. Very recently Parliament intervened in this field as well. Parliament has now strictly limited the severity of the corporal punishment a parent may lawfully give his child. Punishment of a child which caused 'actual bodily harm' cannot be justified, either in civil proceedings or in respect of certain criminal offences, on the ground that it constituted reasonable punishment: section 58 of the Children Act 2004. Thus, to be lawful, corporal punishment administered by a parent must stop short of causing actual bodily harm. This further provision does not directly affect these proceedings, although it forms part of the present-day background.

7

Additionally, it should be noted that in 2003 a ban was introduced on child minders smacking children ('shall not give corporal punishment to a child for whom he acts as a child minder or provides day care'): see the Day Care and Child Minding (National Standards) (England) Regulations 2003, SI 2003/1996, para 5.

The claimants

8

The claimants in these proceedings are head teachers, teachers and parents of children at four independent schools. The schools are the Christian Fellowship School at Edge Hill, Liverpool, Bradford Christian School at Idle, Bradford, Cornerstone School at Epsom, Surrey, and King's School at Eastleigh, Hampshire. The claimants' principal claim is that the extended statutory ban is incompatible with their Convention right to freedom of religion and freedom to manifest their religion in practice, a right guaranteed under article 9 of the Convention on Human Rights. The proceedings failed in both courts below: see Elias J [2002] ELR 214 and the Court of Appeal, comprising Buxton, Rix and Arden LJJ, [2003] QB 1300. Although the judges differed somewhat in their reasons, each judgment contains a valuable discussion of the underlying principles of human rights law.

9

The claimants claim to speak on behalf of a 'large body of the Christian community' in this country whose 'fundamental beliefs' include a belief that 'part of the duty of education in the Christian context is that teachers should be able to stand in the place of parents and administer physical punishment to children who are guilty of indiscipline'. They reject the general standards of state education available in this country as not fitting their religious and moral beliefs. They believe that, correctly used, 'discipline of this type is an effective deterrent against behaviour that is unacceptable in the community'. The object is 'not to injure but to give an unequivocal message of unacceptable behaviour that will not be tolerated'. The aim is 'to help form godly character'. The claimants are reticent about the name, organisation and other particular beliefs of the group of which they are members, stating only they are all 'practising Christians' and that there are 40 schools conducted in accordance with these beliefs.

10

The claimants' beliefs regarding the use of corporal punishment by both parents and teachers are based on their interpretation of certain passages in the Bible. For instance, 'He who spares the rod hates his son, but he who loves him is diligent to discipline him': Proverbs 13:24. They say the use of 'loving corporal correction' in the upbringing of children is an essential of their faith. They believe these biblical sources justify, and require, their practices. Religious liberty, they say, requires that parents should be able to delegate to schools the ability to train children according to biblical principles. In practice the corporal punishment of boys takes the form of administering a thin, broad flat 'paddle' to both buttocks simultaneously in a firm controlled manner. Girls may be strapped upon the hand. The child is then comforted by a member of the staff and encouraged to pray. The child is given time to compose himself before returning to class. There is no question of 'beating' in the traditional sense. 'Smacking' would be closer to the mark: see Elias J [2002] ELR 214, 216-217, para 4. In practice the schools rarely resort to corporal punishment.

Section 548 of the Education Act 1996

11

The statutory provision under challenge is section 548(1) of the Education Act 1996, as amended by the School Standards and Framework Act 1998. The first issue in these proceedings concerns the proper interpretation of this provision. Section 548(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….

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.'

Corporal punishment means punishment which, justification apart, constitutes battery: section 548(4). Member of staff includes a teacher at the school in control or charge of the child: section 548(6). Child means a person under the age of 18: section 548(7).

12

The claimants contend this statutory provision does not apply where parents, having the common law right to discipline their child, expressly delegate this right to a teacher. Then the teacher is exercising an expressly delegated power, not acting as a teacher 'as such'. This interpretation of section 548 would, it is said, accord proper respect to the deliberate decision of parents in respect of the education and disciplining of their children.

13

I consider this interpretation of section 548 is not tenable. It is unnecessary to consider the origins of a teacher's disciplinary powers in relation to school pupils or the extent to which a parent's disciplinary powers are expressly delegable. Suffice to say, the plain purpose of section 548(1) was to prohibit the use of corporal punishment by all teachers in all schools. The claimants'...

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