Application by Robert McMillen, Chairman of the Board of Governors of Ballyclare High School, for Judicial Review
| Jurisdiction | Northern Ireland |
| Judge | Weatherup J |
| Judgment Date | 18 January 2008 |
| Neutral Citation | [2008] NIQB 21 |
| Date | 18 January 2008 |
| Court | Queen's Bench Division (Northern Ireland) |
| Year | 2008 |
1
Neutral Citation no. [2008] NIQB 21
Ref:
WEAL4827T
Transcript, as amended.
Judgment: approved by the Court for handing
d
Delivered:
18/01/2008
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
____________
AN APPLICATION BY ROBERT McMILLEN, CHAIRMAN OF THE BOARD OF
GOVERNORS OF BALLYCLARE HIGH SCHOOL,
FOR JUDICIAL REVIEW
____________
WEATHERUP J
[1] This is an application for Judicial Review by Dr Robert McMillen, Chairman
of the Board of Governors of Ballyclare High School. The application concerns two
matters, being in the first place the dress and appearance code of Ballyclare High
School, as set out in rules contained in “Ballyclare High School Uniform 2007/2008”
and secondly the school disciplinary procedures, as set out in “School Policy –
Discipline”. The applicant seeks declarations that the adoption and application of the
uniform policy and the disciplinary policy are lawful and in particular that they are
not discriminatory under the Sex Discrimination (Northern Ireland) Order 1976 and
not in breach of obligations under the European Convention of Human Rights,
Article 8, the right to respect for private life, Article 10, the right to freedom of
expression, Article 14, the right to freedom from discrimination and Article 2 of the
first protocol, the right to education.
[2] Four boys at the school refused to comply with the uniform policy in relation
to the length of hair and all were made notice parties to this application.
Representatives of two of the boys were made respondents in the application and
they are to be known as GS and MR. Notice was also given to the Northern Ireland
Commissioner for Children and Young Persons (NICCY) who were represented at
the hearing. Mr O’Donoghue and Mr Doran appeared on behalf of the applicant, Mr
O’Hare appeared for GS, Mr McGleenan appeared for MR and Ms Higgins and
Ms McMahon for NICCY.
[3] The affidavit of Dr McMillen explains the reason for the decision by the
school to take these proceedings –
2
‘Those responsible for the running of the school are
extremely concerned that the matter is now getting
out of control, with other boys being encouraged to
defy the school’s policy and with the heightened
public interest created in the local media. The school
has been forced to issue press statements in response
to accusations against the school in order to set out its
position. The Board of Governors has decided,
however, that in order to protect the interests of the
school as a public education establishment, the
interests of the individual students affected by the
policy and the interests of all students at the school,
the court should be invited to rule on whether the
school’s policy - and the application of disciplinary
procedures of publics who have failed to adhere to it -
is lawful.’
[4] Dr McMillen describes Ballyclare High School as a long established grammar
school, the ethos of the school being one in which self discipline is promoted and
pupils are encouraged to accept responsibility for themselves and others within the
school community. To that end, a code of practice has been drawn up which
encourages compliance with discipline and uniform. The policy has had the
consensus of parents and pupils for the last 7 years. Parents and pupils have signed
the code of practice to indicate their agreement with the terms. That sense of pupils
taking a pride in themselves, which the policy encapsulates, is at the heart of the
ethos of the school. A strong sense of shared identify is developed through the
implementation of the uniform policy. Pupils have a sense of ownership because
their voice is heard through the School Council and the school prefects. Last year a
review of the school discipline policy involved consultation with pupils and
parents. The school’s complaints policy has not been used to challenge the terms
and conditions of the discipline policy, the uniform policy or the code of practice.
[5] The four pupils concerned are GS, who has been subject to detention and a
period of suspension and is now segregated within the school. His younger brother
RS has been in detention. The third pupil MR has also served periods of detention
and a fourth pupil DD has a medical condition and is being dealt with in a different
manner.
[6] An affidavit was filed by GS. He believes that the length of his hair does not
have anything to do with or affect neatness or self discipline or his sense of
belonging to the school or any other aims of the code of practice. He questions the
consistency of the school, in so far as he has been suspended and other boys have
not, including boys who have been in detention for having very short hair. He also
makes comparisons with the rules in relation to girl’s hair as they are allowed to
have long hair, although it must be tied back. The school would not agree that he
would wear a ponytail under his jacket collar. He complains about the lack of
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3 cases
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Leung Kwok Hung Also Known As “Long Hair” v Commissioner Of Correctional Services
...already concluded above, is made on the ground of the sex. 68. Mr Pao also refers to Fuller v Mastercare [2001] EAT 0707/00, Re McMillen [2008] NIQB 21 and Dansie v Commissioner of Police for the Metropolis [2009] EAT 0234/09 to further support his 69. As Mr Pao recognises, the courts and t......
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Leung Kwok Hung Also Known As "Long Hair" v Commissioner Of Correctional Services
...Fuller v Mastercare Service & Distribution [2001] UKEAT/0707/00; Department for Work and Pensions v Thompson [2004] IRLR 348; Re McMillen [2008] NIQB 21; Dansie v Commissioner of Police for the Metropolis [2009] UKEAT/0234/09/RN. 39. In the context of custodial discipline for prisoners, Mr ......
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Leung Kwok Hung Also Known As "Long Hair" v Commissioner Of Correctional Services
...At 1193G-H. [22] At 765D (Lord Bridge of Harwich). [23] At paras 16, 22, 23 (per Lord Phillips of Worth Matravers PSC). [24] [2008] NIQB 21, at para 21. [25] See Section B.6 below. [26] See JFS, at paras 14, 17, 20, 22, 57, 59, 113, 115, 116, 132 and 141. [27] At para 116. ...