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OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Regina
v.
Secretary of State for Education and Employment and
others (Respondents) ex parte Williamson (Appellant) and others
ON
THURSDAY 24 FEBRUARY 2005
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
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Regina v. Secretary of State for Education and Employment
and others (Respondents) ex parte Williamson (Appellant) and others
[2005] UKHL 15
LORD BINGHAM OF CORNHILL
My Lords,
- 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,
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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).
- 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.
- 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' interpretation, if right, would defeat this purpose. The
claimants' interpretation would mean the ban on the use of corporal
punishment by teachers could be side-stepped by parents expressly giving
their consent to the infliction of corporal punishment on their child.
Thus the ban would not be mandatory in its operation. It would be
optional, at the choice of the parents.
- In my view the phrase 'by virtue
of his position as such' in section 548(1)(a) is apt to limit the
application of section 548(1) to corporal punishment given by a teacher
while acting as a teacher, that is, while discharging his functions as a
teacher. It excludes cases where, for example, a teacher is himself a
parent and is acting in that capacity when punishing a child. Read in
context, this phrase is not apt to draw a distinction between cases
where the teacher has been expressly authorised by the parents and cases
where he has not. In the former case as much as the latter
administration of corporal punishment by a teacher derives from a right
exercisable by him by virtue of his position as a teacher within the
meaning of section 548.
Freedom of belief and the Convention rights
- I turn to the claims based on
the claimants' Convention rights. Religious and other beliefs and
convictions are part of the humanity of every individual. They are an
integral part of his personality and individuality. In a civilised
society individuals respect each other's beliefs. This enables them to
live in harmony. This is one of the hallmarks of a civilised society.
Unhappily, all too often this hallmark has been noticeable by its
absence. Mutual tolerance has had a chequered history even in recent
times. The history of most countries, if not all, has been marred by the
evil consequences of religious and other intolerance.
- It is against this background
that article 9 of the European Convention on Human Rights safeguards
freedom of religion. This freedom is not confined to freedom to hold a
religious belief. It includes the right to express and practise one's
beliefs. Without this, freedom of religion would be emasculated.
Invariably religious faiths call for more than belief. To a greater or
lesser extent adherents are required or encouraged to act in certain
ways, most obviously and directly in forms of communal or personal
worship, supplication and meditation. But under article 9 there is a
difference between freedom to hold a belief and freedom to express or
'manifest' a belief. The former right, freedom of belief, is absolute.
The latter right, freedom to manifest belief, is qualified.
- This is to be expected, because
the way a belief is expressed in practice may impact on others. Familiar
instances of conduct shaped by particular religious beliefs are the days
or times when worship is prescribed or encouraged, the need to abstain
from work on certain days, forms of dress, rituals connected with the
preparation of food, the need for total abstinence from certain types of
food or drink, and the need for abstinence from all or some types of
food at certain times. In a more generalised and non-specific form the
tenets of a religion may affect the entirety of a believer's way of
life: for example, 'thou shalt love thy neighbour as thyself'. The
manner in which children should be brought up is another subject on
which religious teachings are not silent. So in a pluralist society a
balance has to be held between freedom to practise one's own beliefs and
the interests of others affected by those practices.
- Article 9 provides:
'1. Everyone has the right to freedom of thought, conscience and
religion; this right includes ... freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject
only to such limitations as are prescribed by law and are necessary in
a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of
the rights and freedoms of others.'
- The importance of this right is
emphasised in the Human Rights Act 1998. It is one of the two Convention
rights singled out for special mention, the other being freedom of
expression. Section 13(1) of the Act provides:
'If a court's determination of any question arising under this Act
might affect the exercise by a religious organisation (itself or its
members collectively) of the Convention right to freedom of thought,
conscience and religion, it must have particular regard to the
importance of that right.'
- Article 2 of the First Protocol
to the European Convention on Human Rights is also material in the
present case in so far as it requires the state to respect the right of
parents to ensure their children's education conforms to the parents'
religious and philosophical convictions:
'No person shall be denied the right to education. In the exercise
of any functions which it assumes in relation to education and to
teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and
philosophical convictions.'
- In the present case there is no
reason to doubt the claimants hold the beliefs they profess. That is not
challenged. But the Secretary of State has mounted a root-and-branch
attack on almost every other aspect of the claimants' case. The
claimants' rights under article 9 and article 2 of the First Protocol,
it is said, are not engaged. It is said that the claimants' beliefs are
not sufficiently cogent, serious, cohesive or important to attract the
protection of either of these Convention articles. Even if they are,
neither the claimant parents nor the claimant teachers are exercising a
right to 'manifest' a religious belief under article 9. Nor can the
infliction of corporal punishment be regarded as part of the claimant
parents' religious convictions within the meaning of article 2 of the
First Protocol. Further, in any event there has been no interference
with the claimants' rights under those articles. If there has been any
interference, it is justified.
The claimants' beliefs
- It is necessary first to clarify
the court's role in identifying a religious belief calling for
protection under article 9. When the genuineness of a claimant's
professed belief is an issue in the proceedings the court will inquire
into and decide this issue as a question of fact. This is a limited
inquiry. The court is concerned to ensure an assertion of religious
belief is made in good faith: 'neither fictitious, nor capricious, and
that it is not an artifice', to adopt the felicitous phrase of Iacobucci
J in the decision of the Supreme Court of Canada in Syndicat
Northcrest v Amselem (2004) 241 DLR (4th) 1, 27, para 52. But,
emphatically, it is not for the court to embark on an inquiry into the
asserted belief and judge its 'validity' by some objective standard such
as the source material upon which the claimant founds his belief or the
orthodox teaching of the religion in question or the extent to which the
claimant's belief conforms to or differs from the views of others
professing the same religion. Freedom of religion protects the
subjective belief of an individual. As Iaccobucci J also noted, at page
28, para 54, religious belief is intensely personal and can easily vary
from one individual to another. Each individual is at liberty to hold
his own religious beliefs, however irrational or inconsistent they may
seem to some, however surprising. The European Court of Human Rights has
rightly noted that 'in principle, the right to freedom of religion as
understood in the Convention rules out any appreciation by the state of
the legitimacy of religious beliefs or of the manner in which these are
expressed': Metropolitan Church of Bessarabia v Moldova (2002) 35
EHRR 306, 335, para 117. The relevance of objective factors such as
source material is, at most, that they may throw light on whether the
professed belief is genuinely held.
- Everyone, therefore, is entitled
to hold whatever beliefs he wishes. But when questions of
'manifestation' arise, as they usually do in this type of case, a belief
must satisfy some modest, objective minimum requirements. These
threshold requirements are implicit in article 9 of the European
Convention and comparable guarantees in other human rights instruments.
The belief must be consistent with basic standards of human dignity or
integrity. Manifestation of a religious belief, for instance, which
involved subjecting others to torture or inhuman punishment would not
qualify for protection. The belief must relate to matters more than
merely trivial. It must possess an adequate degree of seriousness and
importance. As has been said, it must be a belief on a fundamental
problem. With religious belief this requisite is readily satisfied. The
belief must also be coherent in the sense of being intelligible and
capable of being understood. But, again, too much should not be demanded
in this regard. Typically, religion involves belief in the supernatural.
It is not always susceptible to lucid exposition or, still less,
rational justification. The language used is often the language of
allegory, symbol and metaphor. Depending on the subject matter,
individuals cannot always be expected to express themselves with cogency
or precision. Nor are an individual's beliefs fixed and static. The
beliefs of every individual are prone to change over his lifetime.
Overall, these threshold requirements should not be set at a level which
would deprive minority beliefs of the protection they are intended to
have under the Convention: see Arden LJ [2003] QB 1300, 1371, para 258.
- This leaves on one side the
difficult question of the criteria to be applied in deciding whether a
belief is to be characterised as religious. This question will seldom,
if ever, arise under the European Convention. It does not arise in the
present case. In the present case it does not matter whether the
claimants' beliefs regarding the corporal punishment of children are
categorised as religious. Article 9 embraces freedom of thought,
conscience and religion. The atheist, the agnostic, and the sceptic are
as much entitled to freedom to hold and manifest their beliefs as the
theist. These beliefs are placed on an equal footing for the purpose of
this guaranteed freedom. Thus, if its manifestation is to attract
protection under article 9 a non-religious belief, as much as a
religious belief, must satisfy the modest threshold requirements
implicit in this article. In particular, for its manifestation to be
protected by article 9 a non-religious belief must relate to an aspect
of human life or behaviour of comparable importance to that normally
found with religious beliefs. Article 9 is apt, therefore, to include a
belief such as pacifism: Arrowsmith v United Kingdom (1978) 3 EHRR 218. The position is much the same with regard to the respect
guaranteed to a parent's 'religious and philosophical convictions' under
article 2 of the First Protocol: see Campbell and Cosans v United
Kingdom 4 EHRR 293.
- I turn to apply this approach in
the present case. Here, different claimants express their beliefs with
different emphases. This is to be expected. The underlying rationale is
expressed in different terms. In practice the circumstances in which
corporal punishment is administered differ. These individual variations
do not mean each individual cannot hold what is, to him or her, a
coherent belief on a matter of importance.
- More difficult is the question
whether the claimants' beliefs are compatible with today's standards of
human integrity. Clearly, corporal punishment can be inflicted on a
child in a way which would be incompatible with those standards. Belief
in the use of corporal punishment of that nature would not be protected
by article 9. But corporal punishment need not be administered with such
severity or in such circumstances that it will significantly impair a
child's physical or moral integrity. In Costello-Roberts v United
Kingdom (1993) 19 EHRR 112 the corporal punishment administered to
the claimant boy by the headmaster of an independent school comprised
three 'whacks' on his bottom through his shorts with a rubber-soled gym
shoe in private. The European Court of Human Rights rejected the claim
based on article 3. The court also rejected the claim based on article 8
(respect for private life). The court left open the possibility there
may be circumstances where article 8 could afford, in respect of
disciplinary measures, protection going beyond article 3. But the court
considered the boy's treatment in that case 'did not entail adverse
effects for his physical or moral integrity sufficient to bring it
within the scope of the prohibition contained in Article 8': para 36.
- The particular relevance of this
decision for present purposes is this. Corporal punishment, even
corporal punishment administered by teachers at school, can be
administered in widely differing circumstances, in widely differing ways
and with widely differing degrees of severity. Not surprisingly, in the
Costello-Roberts case the European Court of Human Rights
confirmed that not every act of corporal punishment of a child at school
violates article 3 or article 8, even though to some extent it may
adversely affect a child's physical and moral integrity. Not every act
of corporal punishment will adversely affect a child's physical and
moral integrity to an extent sufficient to constitute a violation of
those articles. This being so, it is difficult to see how all corporal
punishment of children, however mildly administered, is of its nature so
contrary to a child's integrity that a belief in its infliction is
necessarily excluded from the protection of article 9. It is difficult
to see how corporal punishment, administered in circumstances and in a
way which does not violate articles 3 or 8, can at the same time be so
contrary to personal integrity that belief in its administration is ipso
facto excluded from the scope of article 9.
- The Secretary of State did not
submit that all forms of corporal punishment necessarily constitute a
violation of article 3. But the Secretary of State submitted that
corporal punishment administered by teachers is contrary to human
dignity. However lovingly intended, corporal punishment by teachers at
school involves the intentional and formalised infliction of violence by
an adult on a child in an institutional setting.
- This is a forceful submission.
But, for the reason just given, it is too wide. In recent years the
standard of what is an acceptable form of discipline for children has
changed markedly. Personal and professional opinions on the desirability
of corporal punishment of children have shifted. This trend is reflected
by the recent amendment in the law, made by section 58 of the Children
Act 2004, restricting the extent to which parents may punish their own
children in this way. But to say that a belief in the desirability of
even a mild degree of corporal punishment by a teacher ('smacking', to
adopt Elias J's description in the present case) violates a child's
integrity to such an extent that manifestation of this belief is outside
article 9 and article 2 of the First Protocol seems to me unwarranted.
That would go too far. I proceed on this footing.
Manifesting the claimants' beliefs in practice
- In the present case a further
prerequisite must be satisfied before article 9 is engaged. Article 9 is
not engaged unless the complainants' activity under consideration is
within the scope of the protection the article affords to the
complainants' beliefs. As to this, the Strasbourg jurisprudence has
consistently held that article 9 does not protect every act motivated or
inspired by a religion or belief. Article 9 does not 'in all cases'
guarantee the right to behave in public in a way 'dictated by a belief':
see, most recently, the decision of the European Court of Human Rights
regarding the wearing of an Islam headscarf in Sahin v Turkey
Application No 44774/98 (29 June 2004), para 66.
- Clearly this is right. Miss
Arrowsmith distributed leaflets to soldiers, urging them to decline
service in Northern Ireland. This was dictated by her pacifist views.
But the contents of the leaflets did not express pacifist views, nor did
the act of distributing the leaflets do so. She was not thereby
manifesting her pacifism: Arrowsmith v United Kingdom 3 EHRR 218.
- Thus, in deciding whether the
claimants' conduct constitutes manifesting a belief in practice for the
purposes of article 9 one must first identify the nature and scope of
the belief. If, as here, the belief takes the form of a perceived
obligation to act in a specific way, then, in principle, doing that act
pursuant to that belief is itself a manifestation of that belief in
practice. In such cases the act is 'intimately linked' to the belief, in
the Strasbourg phraseology: see Application 10295/82 v United Kingdom
(1983) 6 EHRR 558. This is so whether the perceived obligation is of
a religious, ethical or social character. If this were not so, and if
acting pursuant to such a perceived obligation did not suffice to
constitute manifestation of that belief in practice, it would be
difficult to see what in principle suffices to constitute manifestation
of such a belief in practice. I do not read the examples of acts of
worship and devotion given by the European Commission in Application
10295/82 v United Kingdom as exhaustive of the scope of
manifestation of a belief in practice.
- This is not to say that a
perceived obligation is a prerequisite to manifestation of a belief in
practice. It is not: see, for instance, Syndicat Northcrest v
Amselem 241 DLR (4th) 1, esp at 25-26, paras 46-50. I am concerned
only to identify what, in principle, is sufficient to constitute
manifestation in a case where the belief is one of perceived obligation.
- Take corporal punishment as an
example. Taken by itself the act of inflicting corporal punishment says
little, if anything, about the belief of the person administering the
punishment. He may have no particular views about the desirability of
corporal punishment, or he may have momentarily lost his self-control,
or he may be acting pursuant to a deeply-held conviction that this form
of punishment is divinely-ordained in the best interests of the child.
In the latter instance the act of administering corporal punishment on a
child is, for that person, an expression of his conviction in practice.
- In the present case the essence
of the parents' beliefs is that, as part of their proper upbringing,
when necessary children should be disciplined in a particular way at
home and at school. It follows that when parents administer corporal
punishment to their children in accordance with these beliefs they are
manifesting these beliefs. Similarly, they are manifesting their beliefs
when they authorise a child's school to administer corporal punishment.
Or, put more broadly, the claimant parents manifest their beliefs on
corporal punishment when they place their children in a school where
corporal punishment is practised. Article 9 is therefore engaged in the
present case in respect of the claimant parents.
- Similarly, and contrary to the
Secretary of State's submissions, the claimant parents' rights under
article 2 of the First Protocol are also engaged in this case.
'Education' in this article is wide enough to include the manner in
which discipline is maintained in a school.
- Thus far under this head I have
been considering the position of the claimant parents. I turn to the
position of the claimant teachers. The right protected by the second
sentence of article 2 of the First Protocol is, expressly, a right of
the parents, not the teachers. Thus the claimant teachers have no claim
under this article. As to article 9, the teachers' beliefs in this case
are ancillary to those of the parents, in that their beliefs concern the
role of schools in furthering the parents' obligations in respect of the
upbringing of their children. The teachers do not assert a belief in the
administration of corporal punishment irrespective of the wishes of the
parents. They do not assert a belief to be obliged to administer
corporal punishment separate from, or independently of, the parental
obligations in this regard. So the teachers' beliefs do not call for
separate consideration from those of the parents. The beliefs of the
parents and the teachers stand or fall together under article 9.
Interference
- The next step is to consider
whether section 548 constitutes an interference with the claimant
parents' manifestation of their beliefs. What constitutes interference
depends on all the circumstances of the case, including the extent to
which in the circumstances an individual can reasonably expect to be at
liberty to manifest his beliefs in practice. In the language of the
Strasbourg jurisprudence, in exercising his freedom to manifest his
beliefs an individual 'may need to take his specific situation into
account': see Kalaç v Turkey (1997) 27 EHRR 552, 564, para 28.
There a judge advocate in the air force was subjected to compulsory
retirement on the ground he was known to have 'unlawful fundamentalist
tendencies' which infringed the principle of secularism on which the
Turkish nation was founded. The court held this did not amount to an
interference with his rights guaranteed by article 9. In choosing to
pursue a military career Kalaç accepted of his own accord a system of
military discipline which by its nature implied the possibility of
limitations incapable of being placed on civilians.
- In the present case there is no
comparable special feature affecting the position of the claimant
parents. Until section 548 of the Education Act 1996 was amended in 1998
the parents were at liberty to manifest their belief in corporal
punishment as described above. Until then corporal punishment by parents
and by teachers in private schools was a lawful activity. Thus the
question is whether the 1998 amendment of the law interfered materially,
that is, to an extent which was significant in practice, with the
claimants' freedom to manifest their beliefs in this way. (In passing, I
doubt whether by the use of the word 'impossible' in Jewish
Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9
BHRC 29, 46, para 80, the European Court of Human Rights was intending
to enunciate a standard which is less protective. That would be
inconsistent with the bedrock principle that human rights conventions
are intended to afford practical and effective protection to human
rights. The court's decision in that case was based on the apparent ease
with which the applicant association could obtain supplies of 'glatt'
kosher meat elsewhere, as noted in paragraphs 81-83 of its judgment.)
- In the present case the
Secretary of State contended that section 548 did not interfere
materially with the claimant parents' manifestation of their beliefs. He
submitted that section 548 left open to the parents several adequate,
alternative courses of action: the parents could attend school on
request and themselves administer the corporal punishment to the child;
or the parents could administer the desired corporal punishment when the
child comes home after school; or, if the need for immediate punishment
is part of the claimants' beliefs, they could educate their children at
home.
- I cannot accept these suggested
alternatives would be adequate. That a parent should make himself
available on call to attend school to administer corporal punishment
should his child be guilty of indiscipline deserving of such punishment
strikes me as unrealistic for many parents. Parental administration of
corporal punishment at home at the end of the day would be significantly
different from immediate teacher administration of corporal punishment
at school. As to home education, there is no reason to suppose that in
general the claimant parents, or other parents with like beliefs, have
the personal skills needed to educate their children at home or the
financial means needed to employ home tutors. I consider section 548
does interfere materially with the claimant parents' rights under
article 9 and article 2 of the First Protocol.
'Justification'
- The final step is to consider
whether this interference is justified. In the case of article 9 the
issue is whether the Secretary of State can show that section 548
satisfies the requirements of article 9(2). Here there is a procedural
complication. This issue was raised at first instance. Elias J dismissed
the Secretary of State's submissions with a degree of briskness: [2002]
2 ELR 214, 229, para 59. He said this is not one of those exceptional
cases where the potential harm resulting from the manifestation of a
belief is so plain that it is obvious on what ground the state has
banned it. Not all corporal punishment is being treated as unlawful,
only that practised in schools. There is no evidence it was appreciated
that banning corporal punishment might conflict with the parents' human
rights or, if appreciated, why it was felt justifiable to interfere with
such rights. Without such evidence it was impossible to say whether the
response was proportionate.
- In the Court of Appeal the
Secretary of State did not raise this issue again. This was a considered
and deliberate decision. Rix LJ expressed his 'unhappiness' that, in
consequence, the submissions before the Court of Appeal did not include
argument that a government ought to be entitled to legislate against all
corporal punishment in schools, on an ultimate balance of the competing
rights and interests involved: [2003] QB 1300, 1332-1335, paras 110-116. Buxton LJ also made plain his
reservations, at page 1328, para 85.
- Before your Lordships' House the
Secretary of State in his written case sought to resurrect this point.
Mr Dingemans QC objected to this. He submitted that if the Secretary of
State were given leave to raise the justification issue again, the
hearing should be adjourned to enable the claimants to bring forward
evidence on this issue.
- Without expressing any view on
this procedural point the appellate committee invited both parties'
counsel to present any oral arguments they wished, additional to their
written arguments, on this justification issue. Counsel did so.
- I am in no doubt that, despite
having abandoned the justification defence in the Court of Appeal, the
Secretary of State should be at liberty to raise this point again.
Clearly it would be unfortunate if this important issue were left
unresolved. I am also satisfied the claimants have not made out a case
for an adjournment. The justification issue was raised before the judge.
The claimants have therefore already had due opportunity to bring
forward their evidence on this issue. The Secretary of State's case on
this issue before this House did not involve reliance on any new
evidence.
- Moreover, and importantly, I am
wholly unpersuaded that the evidence the claimants wish to adduce would
assist in deciding the justification issue. The proposed new material
would comprise psychiatric and other research evidence on the effect of
corporal punishment, including in particular the effect of corporal
punishment in an environment where 'the relationship between school and
home is a crucial issue in the progress and development of each child',
and parental evidence on the effect the ban on corporal punishment has
had on their children since section 548 came into effect. But this
evidence would resolve nothing. It is well known that different views
are held on the desirability of the corporal punishment of children.
Evidence by parents, experts and others that in their opinion corporal
punishment has an overall beneficial effect, or that it may do so in
certain circumstances, would be no more than evidence in support of one
view on a much discussed social issue affecting every family.
- So I turn to the substance of
this defence. The interference with the manifestation of the claimants'
beliefs effected by section 548 readily meets the criterion that it must
be prescribed by law. The ban has been prescribed by primary legislation
in clear terms.
- Equally I am in no doubt this
interference is, within the meaning of article 9, 'necessary in a
democratic society ... for the protection of the rights and freedoms of
others'. The statutory ban pursues a legitimate aim: children are
vulnerable, and the aim of the legislation is to protect them and
promote their wellbeing. Corporal punishment involves deliberately
inflicting physical violence. The legislation is intended to protect
children against the distress, pain and other harmful effects this
infliction of physical violence may cause. That corporal punishment
may have these harmful effects is self-evident.
- Further, the means chosen to
achieve this aim are appropriate and not disproportionate in their
adverse impact on parents who believe that carefully-controlled
administration of corporal punishment to a mild degree can be
beneficial, for this reason: the legislature was entitled to take the
view that, overall and balancing the conflicting considerations, all
corporal punishment of children at school is undesirable and unnecessary
and that other, non-violent means of discipline are available and
preferable. On this Parliament was entitled, if it saw fit, to lead and
guide public opinion. Parliament was further entitled to take the view
that a universal ban was the appropriate way to achieve the desired end.
Parliament was entitled to decide that, contrary to the claimants'
submissions, a universal ban is preferable to a selective ban which
exempts schools where the parents or teachers have an ideological belief
in the efficacy and desirability of a mild degree of
carefully-controlled corporal punishment.
- Parliament was entitled to take
this course because this issue is one of broad social policy. As such it
is pre-eminently well suited for decision by Parliament. The legislature
is to be accorded a considerable degree of latitude in deciding which
course should be selected as the best course in the interests of school
children as a whole. The subject has been investigated and considered by
several committees, including the Plowden report 'Children and their
Primary Schools' (1967, Central Advisory Council for Education
(England)), the Elton report 'Discipline in Schools' (1989) and the
Williams report 'Childhood Matters' (1996, the National Commission of
Inquiry into the Prevention of Child Abuse). The issue was fully debated
in Parliament. As mentioned in Wilson v First County Trust (No 2)
[2004] 1 AC 816, 842-844, paras 62-67, the proportionality of a statutory
measure is to be judged objectively and not by the quality of the
reasons advanced in support of the measure in the course of
parliamentary debate. But it can just be noted that the desirability or
otherwise of overriding parental choice was a matter mentioned in the
course of debate in both Houses of Parliament. In both Houses specific
mention was made of the Convention rights of parents under article 2 of
the First Protocol.
- For these reasons I am satisfied
section 548 does not violate the rights of the claimants, either parents
or teachers, under article 9. For the same reasons there has been no
violation of the claimant parents' rights under article 2 of the First
Protocol. I am fortified in these conclusions by the additional
considerations mentioned by my noble and learned friends Lord Walker of
Gestingthorpe and Baroness Hale of Richmond. The present case cannot be
regarded as comparable to Campbell and Cosans v United Kingdom 4 EHRR 293. In the present case, unlike in the Campbell case, the
claimants' beliefs involve inflicting physical violence on children in
an institutional setting. Parliament was bound to respect the claimants'
beliefs in this regard, but was entitled to decide that manifestation of
these beliefs in practice was not in the best interests of children. I
would dismiss this appeal.
LORD WALKER OF GESTINGTHORPE
My Lords,
- I have had the privilege of
reading in draft the opinions of my noble and learned friends Lord
Nicholls of Birkenhead and Baroness Hale of Richmond. I agree with them
that this appeal should be dismissed, and I agree with their reasoning.
But on some points I would, at least as a matter of emphasis, express my
views a little differently. I shall therefore add a few observations of
my own, although I am conscious that it may not be particularly helpful
to multiply opinions in a case which has already produced such a variety
of routes of reasoning by which to arrive at the same conclusion.
- In his written and oral
submissions Mr Dingemans QC (for the appellants) devoted quite a lot of
time to the meaning of "religion" in article 9. In my opinion it is
certainly not necessary, and is probably not useful, for your Lordships
to try to reach a precise definition. Courts in different jurisdictions
have on several occasions had to attempt the task, often in the context
of exemptions or reliefs from rates and taxes, and have almost always
remarked on its difficulty. Two illuminating cases are the decisions of
Dillon J in In re South Place Ethical Society [1980] 1 WLR 1565
and that of the High Court of Australia in Church of the New Faith v
Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, both of
which contain valuable reviews of earlier authority. The trend of
authority (unsurprisingly in an age of increasingly multi-cultural
societies and increasing respect for human rights) is towards a "newer,
more expansive, reading" of religion (Wilson and Deane JJ in the
Church of the New Faith case at p174, commenting on a similar
trend in United States jurisprudence).
- There are two reasons why it is
unnecessary for the House to grapple with the definition of religion.
One is that article 9 protects, not just the forum internum of
religious belief, but "freedom of thought, conscience and religion."
This is coupled with the individual's (qualified) freedom "to manifest
his religion or belief, in worship, teaching, practice and observance."
Similarly article 2 of the First Protocol refers not just to religious
beliefs but to "religious and philosophical convictions." Plainly these
expressions cover a wider field than even the most expansive notion of
religion. Pacifism, vegetarianism and total abstinence from alcohol are
uncontroversial examples of beliefs which would fall within article 9
(of course pacifism or any comparable belief may be based on religious
convictions, but equally it may be based on ethical convictions which
are not religious but humanist: this was the sort of problem which
confronted the United States Supreme Court in United States v Seeger
380 US 163 (1965), where the relevant statute recognised
conscientious objection to military service only if it arose from
"religious training and belief", which was elaborately defined as
requiring belief in a Supreme Being and not including "essentially
political, sociological, or philosophical views or a merely personal
moral code.") It is to be noted that section 13 of the Human Rights Act
1998 is more restricted, referring to the exercise of article 9 rights
"by a religious organisation (itself or its members collectively)." But
little reliance was placed, in argument, on section 13.
- The other reason why the House
need not grapple with the problem of definition is that it is not in
dispute that Christianity is a religion, and that the appellants are
sincere, practising Christians. Those who profess the Christian religion
are divided among many different churches and sects, sometimes hostile
to each other, which is a cause of both sadness and scandal. That some
Christians should believe that the Bible not merely permits but enjoins
them to have corporal punishment administered to their children may be
surprising to many, but it is by no means an extreme instance. Some
sects claiming to be Christian believed that polygamy was not merely
permitted but actually enjoined by the Bible: see Reynolds v United
States 98 US 145 (1879); Mormon Church v United States 136 US
1 (1890). Others believe that medical treatment by blood transfusion is
forbidden by the Bible and is sinful, even if it is the only means of
saving life: see Re O (A minor) (Medical Treatment) [1993] 2 FLR
149; Re R (A minor) (Blood Transfusion) [1993] 2 FLR 757.
Countless thousands have suffered cruel deaths because at different
periods during the last two thousand years parts of the Christian Church
thought that the Bible not merely permitted but enjoined them to torture
and kill apostates, heretics and witches. In Bowman v Secular
Society [1917] AC 406, 456 Lord Sumner referred to "the last persons
to go to the stake in this country pro salute animae" (that was
in 1612 or thereabouts). By comparison with these horrors a belief in a
scriptural basis for smacking children is fairly small beer.
- In the Court of Appeal Arden LJ
said [2003] QB 1300, 1371, para 258,
". . . to be protected by article 9, a religious belief, like a
philosophical belief, must be consistent with the ideals of a
democratic society, and that it must be compatible with human dignity,
serious, important, and (to the extent that a religious belief can
reasonably be required so to be) cogent and coherent."
Later in this opinion I shall suggest that it
may be unwise to take a rigidly analytical approach to the application
of article 9. But assuming for the moment that the issue is to be
analysed in terms of (i) the existence of a belief, (ii) its
manifestation, (iii) interference with the manifested belief and (iv)
justification of the interference, I doubt whether it is right for the
court (except in extreme cases such as the "Wicca" case mentioned below)
to impose an evaluative filter at the first stage, especially when
religious beliefs are involved. For the Court to adjudicate on the
seriousness, cogency and coherence of theological beliefs is (as
Richards J put it in R (Amicus) v Secretary of State for Trade &
Industry [2004] IRLR 430, 436-7, para 36) to take the Court beyond its legitimate
role. The High Court of Australia expressed similar views in the
Church of the New Faith case, especially at pp129-30 (Mason ACJ
and Brennan J) and at p174 (Wilson and Deane JJ). So did the Supreme
Court of Canada in Syndicat Northcrest v Amselem [2004] 241 DLR
4th 1, especially at p24, para 43 (Iacobucci J giving the judgment in
which the majority concurred). So did the United States Supreme Court in
Employment Division, Department of Human Resources of Oregon v
Smith 494 US 872 (1990), especially at pp. 871-2 (Scalia J giving
the majority opinion); the case contains a full discussion of the Free
Exercise Clause of the First Amendment. Only in clear and extreme cases
can a claim to religious belief be disregarded entirely, as in X v
United Kingdom, Application No. 7291/75, admissibility decision of 4
October 1977 (no evidence of the existence of the "Wicca" religion).
- A filter is certainly needed,
because it is quite clear (as Mason ACJ and Brennan J put it crisply in
the Church of the New Faith case at p136) that "Religious
conviction is not a solvent of legal obligation." In my opinion the
filters are to be found (first) in the concept of manifestation
of religion or belief and (second) in Article 9 (2), which qualifies an
individual's freedom to manifest his religion or beliefs (in the four
ways mentioned in article 9 (1): worship, teaching, practice and
observance) by:
". . . such limitations as are prescribed by law and are necessary
in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of
the rights and freedoms of others."
- I must recognise that the views
of Arden LJ quoted above are not without some support in the
jurisprudence of the Strasbourg Court. In Campbell and Cosans v
United Kingdom (1982) 4 EHRR 293 (in which parents objected, but not
on religious grounds, to their children receiving corporal punishment)
the European Court of Human Rights stated (p304, para 36) that
'convictions',
"denotes views that attain a certain level of cogency,
seriousness, cohesion and importance."
It added (p305, para 36) that 'philosophical
convictions',
"denotes, in the Court's opinion, such convictions as are worthy
of respect in a 'democratic society' and are not incompatible with
human dignity."
The latter passage refers back to the Court's
decision in Young, James & Webster v United Kingdom (1981) 4
EHRR 38 (para 63), a case on an employee who had conscientious
objections to a "closed shop" policy.
- I have to say that I find these
qualifications rather alarming, especially if they are to be applied to
religious beliefs. For the reasons already noted, the court is not
equipped to weigh the cogency, seriousness and coherence of theological
doctrines. Anyone who feels in any doubt about that might refer to the
hundreds of pages of the law reports devoted to 16 years of litigation,
in mid-Victorian times, as to the allegedly "Romish" beliefs and
devotions of the incumbent of St Alban's, Holborn (the litigation,
entitled Martin v Mackonochie, starts with (1866) LR2 A & E
116 (Court of Arches) and terminates at (1882) 7 PD 94 (Privy Council
sitting with Ecclesiastical Assessors)). Moreover, the requirement that
an opinion should be "worthy of respect in a 'democratic society'" begs
too many questions. As Mr Diamond (following Mr Dingemans) pointed out,
in matters of human rights the court should not show liberal tolerance
only to tolerant liberals.
- Campbell and Cosans was
concerned with the meaning of "philosophical convictions" in article 2
of the First Protocol, not with the meaning of 'religion' or 'belief'.
The reference to a 'democratic society' in the passage quoted from para
36 of the judgment suggests that so far as it may be relevant to article
9 also, it must be looking at the article as a whole, including article
9 (2). Much of the Strasbourg jurisprudence takes a flexible approach,
summarised by Clayton and Tomlinson, The Law of Human
Rights (2000) para 14.40:
"In the majority of cases, the Court has avoided making any
express determination as to whether the subject matter comes within
the scope of Article 9. In other cases, the Court has either assumed
the existence of a religious belief without question, or has found
against the existence of a manifestation of religious belief without
determining whether there was a religion in issue."
The footnotes to this passage refer to X v
Italy (1976) 5 DR 83 (complaints under articles 9, 10 and 11 by
persons convicted of reorganising the Fascist Party in Italy);
Hoffman v Austria (1993) 17 EHRR 293 (refusal of blood
transfusions by a Jehovah's Witness); and X and Church of Scientology
v Sweden (1979) 16 DR 68 (Scientology advertisement which was in any
event commercial in nature).
- The first necessary filter, I
suggest, in order to prevent article 9 becoming unmanageably diffuse and
unpredictable in its operation, is the notion of manifestation of a
belief. Although freedom of thought and conscience is "also a precious
asset for atheists, agnostics, sceptics and the unconcerned"
(Kokkinakis v Greece (1993) 17 EHRR 397,418, para 31), the notion
of manifesting a belief is particularly appropriate to the area of
religious belief. Most religions require or encourage communal acts of
worship of various sorts, preaching, public professions of faith and
practices and observances of various sorts (including habits of dress
and diet). There will usually be a central core of required belief and
observance and relatively peripheral matters observed by only the most
devout. These can all be called manifestations of a religious belief. By
contrast the manifestation or promotion of secular beliefs (or "causes")
tends to be focused on articles 10 and 11, although reliance may be
placed on article 9 also.
- It is clear that not every act
which is in some way motivated or inspired by religious belief is to be
regarded as the manifestation of religious belief: see Hasan and
Chaush v Bulgaria (2002) 34 EHRR 1339, 1358, para 60. Article 9
protects (as well as the forum internum)
". . .acts which are intimately linked to [personal convictions
and religious beliefs], such as acts of worship or devotion which are
aspects of the practice of a religion or belief in a generally
recognised form."
See Kalac v Turkey (1997) 27 EHRR 552,
558 (para 34 of the Commission's opinion) and 564 (para 27 of the
judgment of the Court); the admissibility proceedings in Konttinen v
Finland Application No. 24949/94; and Sahin v Turkey
Application No. 44774/98, judgment given 29 June 2004, para 66. Richards
J made a similar point, in the Amicus case, [2004] IRLR 430, 438, para 44, when he observed that:
"the weight to be given to religious rights may depend upon how
close the subject-matter is to the core of the religion's values or
organisation."
In the Oregon case 494 US 872, 888,
footnote 4, Scalia J gave a particularly vivid example:
". . . dispensing with a 'centrality' inquiry is utterly
unworkable. It would require, for example, the same degree of
'compelling state interest' to impede the practice of throwing rice at
church weddings as to impede the practice of getting married in
church."
- I am therefore in respectful
agreement with Lord Nicholls that, at any rate by the time that the
court has reached the stage of considering the manifestation of a
belief, it must have regard to the implicit (and not over-demanding)
threshold requirements of seriousness, coherence and consistency with
human dignity which Lord Nicholls mentions.
- The second filter is article 9
(2), on which (as on the issue of interference) I have very little to
add to what has been said by Lord Nicholls and Baroness Hale. It is
regrettable that Mr Dingemans felt pressed for time in dealing with this
aspect of the appeal. But justification was an issue at first instance,
and both sides had the opportunity of putting in evidence on that issue.
The respondent gave ample notice of his wish to raise the issue again
before the House. It would have been unsatisfactory not to have
considered such a major issue on this important appeal.
- It would have been particularly
unsatisfactory on this appeal because in a case of this sort the issues
of engagement, interference and justification are in truth closely
linked together. At the beginning of his oral submissions Mr Dingemans
(perhaps having in mind the Strasbourg Court's rather inconclusive
approach as described in the passage which I have quoted from Clayton
and Tomlinson) suggested that the Strasbourg jurisprudence on
article 9 lacks a principled and consistent approach. I would not give
much weight to that criticism. This is an area in which a rigidly
analytical approach, dividing the case into watertight issues, to be
decided seriatim, may not always be the best way forward. The
court may conclude that a claimant has a sincere opinion which could
just about be described as a religious belief, and that the claimant's
conduct in accordance with that belief could just about be described as
a manifestation of it. But the fact that the claimant may have only just
scraped over those two thresholds should not be disregarded in
determining the issue of interference or in the exercise of balancing
interests and testing proportionality which is required under article 9
(2) if (perhaps by giving the claimant the benefit of the doubt) the
court gets that far.
- Your Lordships were referred to
a recent case before the Constitutional Court of South Africa,
Christian Education South Africa v Minister of Education (2000) 9
BHRC 53, which raised essentially the same issue as is now before the
House, but in a rather different context. The context was different
because of the different terms of the South African Constitution (see
especially section 36 set out at p.67, para 30) and the different
historical and social background, to which the Constitutional Court
attached particular importance (see pp 75-76, paras 50-51). Nevertheless
I have found the judgment of the Court, delivered by Sachs J, very
helpful, especially the general discussion at pp 68-70, paras 33-35.
Sachs J said at para 35:
"The underlying problem in any open and democratic society based
on human dignity, equality and freedom in which conscientious and
religious freedom has to be regarded with appropriate seriousness, is
how far such democracy can and must go in allowing members of
religious communities to define for themselves which laws they will
obey and which not. Such a society can cohere only if all its
participants accept that certain basic norms and standards are
binding. Accordingly, believers cannot claim an automatic right to be
exempted by their beliefs from the laws of the land. At the same time,
the state should, wherever reasonably possible, seek to avoid putting
believers to extremely painful and intensely burdensome choices of
either being true to their faith or else respectful of the law."
- Earlier, at para 31, Sachs J had
said:
"Though there might be special problems attendant on undertaking
the limitations analysis in respect of religious practices, the
standard to be applied is the nuanced and contextual one required by
s36 and not the rigid one of strict scrutiny."
Section 36 spells out the nature of the
balancing exercise more fully than the corresponding provisions of the
Convention. Nevertheless I consider that a nuanced and contextual
approach is required also in applying article 9 of the Convention and
article 2 of the First Protocol, even if that sort of approach has some
tendency to blur rigid distinctions between the issues of engagement,
interference, and justification.
- I would give the appellants the
benefit of the doubt in getting to article 9 (2), but for the reasons
given by Lord Nicholls and Baroness Hale they must fail at that stage.
Nor does article 2 of the First Protocol assist them, since it is aimed
at preventing state indoctrination, and must be applied in conformity
with other articles of the Convention: Kjeldsen, Busk Madsen and
Pedersen v Denmark (1976) 1 EHRR 711, 730-731, para 53.
- For these reasons, as well as
for those given by my noble and learned friends Lord Nicholls and
Baroness Hale, I would dismiss this appeal.
BARONESS HALE OF RICHMOND
My Lords,
- This is, and has always been, a
case about children, their rights and the rights of their parents and
teachers. Yet there has been no-one here or in the courts below to speak
on behalf of the children. No litigation friend has been appointed to
consider the rights of the pupils involved separately from those of the
adults. No non-governmental organisation, such as the Children's Rights
Alliance, has intervened to argue a case on behalf of children as a
whole. The battle has been fought on ground selected by the adults. This
has clouded and over-complicated what should have been a simple issue.
For the sake of the children, therefore, I would like to add a few
further comments to those of my noble and learned friends, Lord Nicholls
of Birkenhead and Lord Walker of Gestingthorpe, with whose opinions I
agree.
- Children have the right to be
properly cared for and brought up so that they can fulfil their
potential and play their part in society. Their parents have both the
primary responsibility and the primary right to do this. The state steps
in to regulate the exercise of that responsibility in the interests of
children and society as a whole. But 'the child is not the child of the
state' and it is important in a free society that parents should be
allowed a large measure of autonomy in the way in which they discharge
their parental responsibilities. A free society is premised on the fact
that people are different from one another. A free society respects
individual differences. 'Only the worst dictatorships try to eradicate
those differences': see El Al Israeli Airlines Ltd v Danielowitz
[1992]4] Isrl LR 478, para 14, Justice Barak. Often they try to do this
by intervening between parent and child. That is one reason why the
European Convention on Human Rights restricts the power of the state to
interfere in family life (article 8) or to limit the manifestation of
religious or other beliefs (article 9) and requires it to respect the
religious or philosophical convictions of parents in the education of
their children (First Protocol, article 2).
- The simple issue in this case is
whether Parliament was entitled to legislate to ban corporal punishment
in all schools. The ban covers schools where the parents and teachers
believe that it is their Christian duty to employ mild physical
correction as a last resort in order to bring up their children
properly. No doubt they also sincerely believe that this is in the
children's best interests. They therefore claim that the ban is an
interference with their right to manifest their religion, guaranteed by
article 9.1 of the European Convention on Human Rights:
"Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief
and freedom, either alone or in community with others and in public or
in private, to manifest his religion or belief, in worship, teaching,
practice and observance."
They also claim that it is in breach of the
right to education protected by article 2 of the First Protocol:
"No person shall be denied the right to education. In the exercise
of any functions which it assumes in relation to education and to
teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and
philosophical convictions."
- The practice of corporal
punishment involves what would otherwise be an assault upon another
person. The essential question, therefore, has always been whether the
legislation achieves a fair balance between the rights and freedoms of
the parents and teachers and the rights, freedoms and interests, not
only of their children, but also of any other children who might be
affected by the persistence of corporal punishment in some schools. The
mechanism for achieving that balance lies in article 9.2:
"Freedom to manifest one's religion or beliefs shall be subject
only to such limitations as are prescribed by law and are necessary in
a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of
the rights and freedoms of others."
It is common ground that the respect due to
the parents' religious and philosophical convictions in the education of
their children under article 2 of the First Protocol may be similarly
limited. That is where the debate in this case should always have been
concentrated. Instead, the argument in the High Court focussed mainly on
whether the beliefs of the parents and teachers qualified for
protection, whether this practice was a manifestation of those beliefs,
and whether the ban was an interference with their manifestation. The
possible justification for the ban was dismissed in a single paragraph
of the judgment. In the Court of Appeal it did not feature at all. As
Rix LJ explained at [2003] QB 1300, 1334, para 113:
"It follows that the real battleground both below and in this
court has not been the important and wide-ranging argument which might
have been advanced, to the effect that, whatever might be said of, for
or against, the mild and loving application of physical punishment to
children in an institutionalised setting, a government ought to be
entitled to legislate against all corporal punishment in schools, on
an ultimate balance of the competing rights and interests involved.
Such an argument would be prepared to take account, on the one side of
the rights and interests of parents in passing to the next generation
the beliefs, religious and philosophical, which help to guide their
lives, and, on the other side of the rights and interests of children
to be free of the dangers that can stem from the permission of any
leeway at all in the matter of corporal punishment; and on a third
side, of the rights and interests of the democratic state, as the
representative of all the competing values and interests in society to
legislate in a way that it believes best, most safely, justly and
proportionately preserves the rights and interests of all concerned."
- Instead the argument was about
"the nature of religious belief itself". That is, of course, a most
important question, but it is not the question in this case. Article 9
protects "freedom of thought, conscience and religion". This includes
the freedom to manifest one's "religion or belief". Those of us who hold
religious beliefs may feel that they are in some way different not only
in kind but also in importance from other beliefs. But those who do not
hold religious beliefs may profoundly disagree. Both article 9 and the
first Protocol are careful not to distinguish between religious and
other beliefs or philosophical convictions, nor do they elevate
religious beliefs above others. The court is not required to consider
the nature of religion, still less is it required to consider whether a
particular belief is soundly based in religious texts. The court's
concern is with what the belief is, whether it is sincerely held, and
whether it qualifies for protection under the Convention.
- Convention jurisprudence
suggests that beliefs must have certain qualities before they qualify
for protection. I suspect that this only arises when the belief begins
to have an impact upon other people, in article 9 terms, when it is
manifested or put into practice. Otherwise people are free to believe
what they like. The European Court in Campbell v Cosans v United
Kingdom (1982) 4 EHRR 293, 303, para 36, equated the parental
convictions which were worthy of respect under the first Protocol with
the beliefs protected under Article 9: they must attain a certain level
of cogency, seriousness, cohesion and importance; be worthy of respect
in a democratic society; and not incompatible with human dignity. No
distinction was drawn between religious and other beliefs. In practice,
of course, it may be easier to show that some religious beliefs have the
required level of cogency, seriousness, cohesion and importance.
- Some people believe so strongly
that all corporal punishment of children is wrong that they may find it
hard to accept that a belief that it is right can in any circumstances
be worthy of respect in a democratic society or compatible with the
human dignity of either the punished or the punisher. That must
sometimes be so. The sort of punishment in which Victoria Climbie's
murderers apparently believed is not worthy of any respect at all. But
in this case we are concerned with carefully controlled, mild and loving
discipline administered in the context of a clear moral code. Many
people in this country still believe that it is right. The rightness or
wrongness of either belief is not a scientifically provable fact. Nor
does either necessarily depend upon the practical efficacy of corporal
punishment in developing character and behaviour. Many would believe it
to be wrong even if it was proven to work. Both are essentially moral
beliefs, although they may be underpinned with other beliefs about what
works best in bringing up children. Both are entitled to respect. A free
and plural society must expect to tolerate all sorts of views which
many, even most, find completely unacceptable.
- Respect is one thing. Allowing
them to be practised is another. I am prepared to accept that the
practice of corporal punishment in these schools is a manifestation of
the parents' and teachers' beliefs: a belief that as a last resort
children may need physical correction as part of their education can
only be manifested by correcting them in that way. I find it difficult
to understand how a ban on that practice is anything other than a
limitation of the right to manifest that belief: the belief in question
is not only a belief that parents should be able to punish their
children but that such punishment is an essential part of the sort of
Christian education in which these parents and teachers believe. I am
deeply troubled by the solution adopted in the Court of Appeal, which
depended upon the parents' continued right to punish the children
themselves. The real question is whether any limits set by the state can
be justified under article 9.2.
- Those limits must fulfil the
three well-known criteria: (1) they must be prescribed by law, as this
undoubtedly is; (2) they must pursue a legitimate aim; and (3) they must
be necessary in a democratic society: the "notion of necessity implies
that the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued":
see, for example, Pretty v United Kingdom (2002) 35 EHRR 1, 38,
para 70.
- There can be no doubt that the
ban on corporal punishment in schools pursues the legitimate aim of
protecting the rights and freedoms of children. It has long been held
that these are not limited to their rights under the European
Convention. The appellants were anxious to stress that the corporal
punishment in which they believe would not breach the child's rights
under either article 3 or article 8. But it can still be legitimate for
the state to prohibit it for the sake of the child. A child has the same
right as anyone else not to be assaulted; the defence of lawful
chastisement is an exception to that right. It has long been held in the
context of article 8 that the rights and freedoms of the child include
his interests: see Hendricks v Netherlands (1983) 5 EHRR 223;
Andersson v Sweden (1992) 14 EHRR 615; Johansen v Norway
(1996) 23 EHRR 33. Even if it could be shown that a particular act of
corporal punishment was in the interests of the individual child, it is
clear that a universal or blanket ban may be justified to protect a
vulnerable class: see Pretty v United Kingdom, para 74 where a
universal ban on assisting suicide could be justified for the protection
of vulnerable people generally, even though Mrs Pretty herself was not
vulnerable: "it is the vulnerability of the class which provides the
rationale for the law in question". Above all, the state is entitled to
give children the protection they are given by an international
instrument to which the United Kingdom is a party, the United Nations
Convention on the Rights of the Child (UNCRC).
- Article 3.1 of UNCRC requires
that:
"In all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child
shall be a primary consideration."
Article 37 requires that:
"States Parties shall ensure that:
(a) No child shall be subjected to torture or other
cruel, inhuman or degrading treatment or punishment . . ."
More significantly in the present context,
article 19.1 provides:
"States parties shall take all appropriate legislative,
administrative, social and educational measures to protect the child
from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse, while in the care of parent(s)., legal
guardian(s) or any other person who has the care of the child."
This is reinforced by article 28.2:
"States Parties shall take all appropriate measures to ensure that
school discipline is administered in a manner consistent with the
child's human dignity and in conformity with the present Convention."
- The United Nations Committee on
the Rights of the Child commented, in its consideration of the United
Kingdom's first report on its compliance with the Convention (see
Concluding Observations of the Committee on the Rights of the Child:
United Kingdom, February 1995) that it was
". . . worried about the national legal provisions dealing with
reasonable chastisement within the family. The imprecise nature of the
expression of reasonable chastisement as contained in these legal
provisions may pave the way for it to be interpreted in a subjective
and arbitrary manner. Thus, the Committee is concerned that
legislative and other measures relating to the physical integrity of
children do not appear to be compatible with the provisions and
principles of the Convention, including those of its articles 3, 19
and 37. The Committee is equally concerned that privately funded and
managed schools are still permitted to administer corporal punishment
to children in attendance there which does not appear to be compatible
with the provisions of the Convention, including those of its article
28, paragraph 2." (para 16)
The Committee went on to recommend that
physical punishment of children in families be prohibited "in the light
of the provisions set out in articles 3 and 19 of the Convention" (para
31); further "legislative measures are recommended to prohibit the use
of corporal punishment in privately funded and managed schools" (para
32).
- At its second review in October
2002, the Committee welcomed the abolition of corporal punishment in all
schools in England, Wales and Scotland following its 1995
Recommendations (see Concluding Observations: United Kingdom
of Great Britain and Northern Ireland, 9 October 2002, para 35). It
went on (para 38):
"The Committee recommends that the State party:
(a) with urgency adopt legislation
throughout the State party to remove the 'reasonable chastisement'
defence and prohibit all corporal punishment in the family and in any
other contexts not covered by existing legislation;
(b) promote positive,
participatory and non-violent forms of discipline and respect for
children's equal right to human dignity and physical integrity,
involving children and parents and all those who work with and for them,
and carry out public education programmes on the negative consequences
of corporal punishment."
- We are not in this case
concerned with physical punishment within the family. This raises more
complex questions than does corporal punishment in institutional
settings. That is no doubt why the Committee's 1995 recommendations
(quoted above) were more nuanced. But in relation to corporal punishment
in schools they have been quite unequivocal. The Committee's
recommendations have also been endorsed by the United Nations Committee
on Economic, Social and Cultural Rights: see Concluding Observations
of the Committee on Economic, Social and Cultural Rights: the United
Kingdom of Great Britain and Northern Ireland - Dependent Territories,
5 June 2002, para 36. How can it not be a legitimate and
proportionate limitation on the practice of parents' religious beliefs
to heed such a recommendation from the bodies charged with monitoring
our compliance with the obligations which we have undertaken to respect
the dignity of the individual and the rights of children?
- There was also a large body of
professional educational and child care opinion in support of the ban.
In 1967, the Plowden Report recommended that "the infliction of physical
pain as a recognised method of punishment in primary schools should be
forbidden" in both state and independent schools: see Children and
their Primary Schools: A Report of the Central Advisory Council for
Education (England) (Chairman: Lady Plowden), HMSO 1967, paras 743 -
750. The Committee knew that the recommendation was controversial, but
they relied upon the psychological evidence received as well as the
almost universal practice in other western countries, particularly in
Europe. In 1985, the Committee of Ministers of the Council of Europe, in
Violence in the Family (Recommendation R85(4)), proposed that
member states should review their legislation so as to limit or indeed
prohibit corporal punishment. Corporal punishment was banned in all
state schools, and for all state funded pupils in independent schools,
by the Education (No 2) Act 1986, section 47. Not long after this, the
Elton Committee of Enquiry into discipline in schools received few
submissions recommending its reintroduction. They also found that there
was "little evidence that corporal punishment was in general an
effective deterrent either to the pupils punished or to other pupils":
see Discipline in Schools: Report of the Committee of Enquiry chaired
by Lord Elton, 1989, HMSO, paras 4.44, 4.46. In 1990, in Social
Measures concerning Violence in the Family (Recommendation R(90)2),
the Committee of Ministers of the Council of Europe emphasised the
importance of the general condemnation of corporal punishment and other
forms of degrading treatment as a means of education and of the need for
a violence free education. In 1991, Sir William Utting, in Children
in the Public Care, a review of residential child care, noted that
corporal punishment in children's homes had "quite properly" been
forbidden under the Children Act 1989 but there was a need for training
and guidance on control, restraint and physical contact with children in
residential care. In 1993, in One scandal too many . . . the case for
comprehensive protection for children in all settings, a
distinguished working group convened by the Gulbenkian Foundation
recommended the prohibition of corporal punishment in all settings where
it was still allowed. This was followed in 1995 by the Report of the
Commission on Children and Violence, chaired by Sir William Utting,
which recommended the immediate abolition of physical punishment in all
schools: see Children and Violence, Gulbenkian Foundation 1995,
pp133-136; 145-146. In 1996, the National Commission of Inquiry into the
Prevention of Child Abuse, chaired by Lord Williams of Mostyn, concluded
that corporal punishment was unsatisfactory and ineffective and
recommended that the law as it affects the physical punishment of
children should be amended to give children the same protection against
assault as adults: see Childhood Matters, 1996, HMSO, paras
5.42-5.45, recommendation 34. In the debates on the 1998 amendment
banning corporal punishment in all schools, Parliament was told that
there were no calls from official teachers' bodies for the
reintroduction of corporal punishment in state schools. The Independent
Schools Council supported the amendment, as did all the teachers'
unions. It also had the support of a consortium of children's charities,
including the NSPCC.
- With such an array of
international and professional support, it is quite impossible to say
that Parliament was not entitled to limit the practice of corporal
punishment in all schools in order to protect the rights and freedoms of
all children. Furthermore, the state has a positive obligation to
protect children from inhuman or degrading punishment which violates
their rights under article 3. But prohibiting only such punishment as
would violate their rights under article 3 (or possibly article 8) would
bring difficult problems of definition, demarcation and enforcement. It
would not meet the authoritative international view of what the UNCRC
requires. The appellants' solution is that they and other schools which
share their views should be exempted from the ban. But this would raise
exactly the same problems. How could it be justified in terms of the
rights and protection of the child to allow some schools to inflict
corporal punishment while prohibiting the rest from doing so? If a child
has a right to be brought up without institutional violence, as he does,
that right should be respected whether or not his parents and teachers
believe otherwise.
- For very different reasons from
those given by the Court of Appeal, therefore, I would dismiss this
appeal.
LORD BROWN OF EATON-UNDER-HEYWOOD
My Lords,
- I have had the benefit of
reading the opinions of my noble and learned friends Lord Nicholls of
Birkenhead, Lord Walker of Gestingthorpe and Lady Hale of Richmond. I
agree with them, and for the reasons they give I too would dismiss this
appeal.
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