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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date12 Dec 2002
Neutral Citation[2003] UKHRR 800,[2002] EWCA Civ 1926

Human rights – Education – Independent Christian schools – Corporal punishment – Appellant teachers having and parents supporting system of corporal punishment – Whether appellants demonstrating manifestation of religious belief – Whether statutory prohibition of corporal punishment by teachers infringing appellants’ Convention rights – Education Act 1996, s 548Human Rights Act 1998, Sch 1, Pt I, arts 8, 9, 10, Pt II, art 2.

The appellants were teachers at, and parents who sent their children to, a number of independent private schools established specifically to provide Christian education based on biblical observance. It was a feature of the regime administered by the teachers at all of these schools that in appropriate cases discipline would be enforced by the use of corporal punishment. The parents agreed with this arrangement. It was the appellants’ case that the use of corporal punishment was based upon Christian principles, and that the justification for, or requirement of this practice came from scriptural sources. The appellants were united in their belief that the evil heart of man had to be addressed by physical correction, though the application of that belief might vary between different adherents. They applied for judicial review by which they sought a declaration that s 548 of the Education Act 1996 as amended (which gave effect to a clear parliamentary intention to abolish corporal punishment in all schools, including independent schools) did not prevent a parent delegating to a teacher in an independent school the right to administer physical punishment. Furthermore, the appellants claimed that s 548 (as amended) infringed their rights under arts 8, 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, and art 2 of the First Protocol. The judge approached the matter by raising two principal questions: (a) whether the desire to have one’s child potentially subject to corporal punishment could properly be described as a religious belief (art 9) or conviction (art 2 of the First Protocol); and (b) if not, was it in any event the manifestation of a belief or practice which was in conformity with the conviction and had been unlawfully interfered with. The judge answered both questions in the negative and dismissed the application for judicial review. The appellants appealed.

Held — (1) (Buxton LJ dissenting in part) For the purposes of art 9 of the Convention, the appellants, by having or supporting a school policy of corporal punishment founded in religion, had demonstrated manifestation of a religious belief. Furthermore, in the case of the parents that belief was entitled to respect under art 2 of the First Protocol. However, whilst a complete ban on corporal punishment would interfere with the manifestation of that belief, in the instant case, s 548 of the 1996 Act (as amended), by prohibiting the imposition by teachers of corporal punishment, had not materially interfered with a Christian scheme of corporal punishment in school in circumstances where the actual application of the punishment could be performed by the parents themselves.

(2) (per Buxton and Arden LJJ) The argument that the act of inflicting corporal punishment had ‘expressive content’ for the purposes of art 10 was too broad. It was completely artificial to regard the teachers, when they inflicted corporal punishment, or the schools when with the consent of the parents they included corporal punishment within the school regime, or the parents when they sent their children to such schools, as having expressed opinions or imparted information. Furthermore, whilst s 548 prevented teachers from acting on their beliefs it did not prevent them or the parents from holding those beliefs, or from conveying those beliefs to others. Therefore, art 10 did not apply in the instant case.

(3) Children did not go to school simply because of a decision taken by their parents, but in pursuit of an obligation imposed on the parents by the state to cause their children to be educated: an obligation that could not possibly be said to be inconsistent with art 8. The reality was that the sending of a child to school necessarily involved some degree of interference with his or her private life. That participation in state-required education took the child outside the private and family sphere even where the education was provided by an independent school. The protection of family values as perceived by the parent could only be achieved in the educational context through art 2 of the First Protocol. Therefore, art 8 would not apply in the instant case.

Accordingly, the appeal would be dismissed.

Cases referred to in judgments

A v UK[1998] 3 FCR 597, [1998] 2 FLR 959, ECt HR.

Arrowsmith v UK (1978) 3 EHRR 218, E Com HR.

C v UK (1983) 37 DR 142, E Com HR.

Campbell and Cosans v UK (1982) 4 EHRR 293, [1982] ECHR 7511/76, ECt HR.

Christian Education South Africa v Minister of Education [2001] 1 LRC 441, SA Const Ct.

Clearly v Booth [1893] 1 QB 465, DC.

Costello-Roberts v UK[1994] 1 FCR 65, ECt HR.

Darby v Sweden (1991) 13 EHRR 774, [1990] ECHR 11581/85, ECt HR.

Edgington v Fitzmaurice (1885) 29 Ch D 459, [1881–5] All ER Rep 856, CA.

Hashman and Harrup v UK (2000) 8 BHRC 104, ECt HR.

Jewish Liturgical Association Chaare Shalom Ve Tsedek v France (2000) 9 BHRC 27, ECt HR.

Kalaç v Turkey (1997) 27 EHRR 552, ECt HR.

Karaduman v Turkey (1993) 74 DR 93, E Com HR.

Kaya v Haringey London BC[2001] EWCA Civ 677, [2001] All ER (D) 15 (May).

Kjeldsen v Denmark (1976) 1 EHRR 711, [1976] ECHR 5095/71, ECt HR.

Kokkinakis v Greece (1993) 17 EHRR 397, ECt HR.

Konttinen v Finland App No 24949/94 (3 December 1996, unreported), E Com HR.

Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, ECt HR.

Pretty v UK[2002] 2 FCR 97, ECt HR.

R (on the application of Anderson) v Secretary of State for the Home Dept, R (on the application of Taylor) v Secretary of State for the Home Dept[2001] EWCA Civ 1698, [2002] 2 WLR 1143; rvsd[2002] UKHL 46, [2002] 4 All ER 1089.

R (on the application of Pretty) v DPP (Secretary of State for the Home Dept intervening) [2001] UKHL 61, [2002] 1 FCR 1, [2002] 1 All ER 1, [2002] 1 AC 800, [2001] 3 WLR 1598, [2002] 1 FLR 268, HL.

R v Central Criminal Court, ex p Bright [2001] 2 All ER 244, [2001] 1 WLR 662, DC.

R v Kansal (No 2) [2001] EWCA Crim 1260, [2002] 2 AC 69, [2001] 3 WLR 751; rvsd[2001] UKHL 62, [2002] 1 All ER 257, [2002] 2 AC 69, [2001] 3 WLR 1562.

Ryan v Fildes [1938] 3 All ER 517.

Seven Individuals v Sweden (1982) 29 DR 104, E Com HR.

Stedman v UK (1997) 23 EHRR CD 168, E Com HR.

Tyrer v UK (1978) 2 EHRR 1, [1978] ECHR 5856/72, ECt HR.

Valsamis v Greece (1996) 24 EHRR 294, [1996] ECHR 21787/93, ECt HR.

Vereiniguing Demokratischer Soldaten österreichs v Austria (1994) 20 EHRR 56, [1994] ECHR 15153/89, ECt HR.

X v UK (1978) 14 DR 234, E Com HR.

X v UK (1984) 6 EHRR 558, E Com HR.

Appeal

The appellants appealed from the decision of Elias J ([2001] EWHC Admin 960, [2002] 1 FLR 493) whereby he dismissed their application for judicial review by way of a declaration as to the effect of s 548 of the Education Act 1996 (as amended). The facts are set out in the judgment of Buxton LJ.

Paul Diamond and Bruno Quintaville (instructed by Windsor & Co) for the appellants.

Hugo Keith (instructed by the Treasury Solicitor) for the respondent.

Cur adv vult

12 December 2002. The following judgments were delivered.

BUXTON LJ. Introduction

[1] This appeal from a decision of Elias J ([2001] EWHC Admin 960, [2002] 1 FLR 493) concerns the compatibility of s 548(1), as amended, of the Education Act 1996 with various provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention); principally, though not exclusively, art 9(1) of the Convention and art 2 of the First Protocol thereto. Section 548(1) provides that—

‘Corporal punishment given by, or on the authority of a member of staff to a child 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 a member of staff by virtue of his position as such.’

Similar provisions had existed in earlier legislation. The significant change in those provisions, achieved by an amendment to the 1996 Act made by s 131 of the School Standards and Framework Act 1998, was to extend this prohibition even to staff in wholly private schools.

[2] I first give an account, drawn from the evidence before the court, of the beliefs and practices of the appellants, teachers and parents at certain private schools, which they allege are interfered with by s 548 in breach of the Convention. Such an account is necessary, not merely as background to the appeal, but also because the claim to be entitled to the protection of the Convention depends on a precise understanding of what it is that is sought to be protected. Next, I set out the asserted interests of the parents who send their children to the schools, on the one hand; and of the teachers who work in and manage those schools on the other; and describe how those interests are interfered with by s 548 on its normal, domestic law construction, applied without reference to the Convention. I then set out my conclusions as to whether s 548 does, in the case of either the parents or the teachers, infringe the rights under the Convention that they assert in this case, and give my reasons in support of those conclusions.

The appellants’ beliefs and their practices

[3] The appellants are teachers at, and parents who send their children to, a number of independent private schools established specifically to provide Christian education based on biblical observance. It is a feature of the regime administered by the teachers at all of these schools that in

appropriate cases discipline will be enforced by the use of corporal punishment...

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