Facts of the case

The issue contested was that the respondent’s (muslim) exclusion from school, due to repeated violations of the uniform code, unjustifiably limited, inter alia, her right under Article 9 of the Convention to manifest her religion and beliefs.

Findings related to FoRB

FoRB violation – Manifestation: worship, observance, practice, teaching. Appeal allowed

Holding/Decision

(1) ‘The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience. Thus, in X v Denmark (1976) 5 DR 157 a clergyman was held to have accepted the discipline of his church when he took employment, and his right to leave the church guaranteed his freedom of religion. His claim under article 9 failed. … Karaduman v Turkey (1993) 74 DR 93 is a strong case. The applicant was denied a certificate of graduation because a photograph of her without a headscarf was required and she was unwilling for religious reasons to be photographed without a headscarf. The Commission found (p 109) no interference with her article 9 right because (p 108) ‘by choosing to pursue her higher education in a secular university a student submits to those university rules, which may make the freedom of students to manifest their religion subject to restrictions as to place and manner intended to ensure harmonious coexistence between students of different beliefs’. In rejecting the applicant’s claim in Konttinen v Finland (1996) 87-A DR 68 the Commission pointed out, in para 1, page 75, that he had not been pressured to change his religious views or prevented from manifesting his religion or belief; having found that his working hours conflicted with his religious convictions, he was free to relinquish his post. … In Stedman v United Kingdom (1997) 23 EHRR CD 168 it was fatal to the applicant’s article 9 claim that she was free to resign rather than work on Sundays. The applicant in Kalaç [v Turkey (1997) 27 EHRR 552], paras 28-29, failed because he had, in choosing a military career, accepted of his own accord a system of military discipline that by its nature impliedthe possibility of special limitations on certain rights and freedoms, and he had been able to fulfil the ordinary obligations of Muslim belief. In Jewish Liturgical Association Cha’are Shalom Ve Tsedek v France (2000) 9 BHRC 27, para 81, the applicants’ challenge to the regulation of ritual slaughter in France, which did not satisfy their exacting religious standards, was rejected because they could easily obtain supplies of meat, slaughtered in accordance with those standards, from Belgium’.

(2) ‘This line of authority has been criticised by the Court of Appeal as overly restrictive (Copsey v WWB Devon Clays Ltd 2005 EWCA Civ 932, [2005] 1CR 1789, paras 31-39, 44-66), and in [R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15], para 39, the House questioned whether alternative means of accommodating a manifestation of religions belief had, as suggested in the Jewish Liturgical case, above, para 80, to be ‘impossible’ before a claim of interference under article 9 could succeed. But the authorities do in my opinion support the proposition with which I prefaced para 23 of this opinion. Even if it be accepted that the Strasbourg institutions have erred on the side of strictness in rejecting complaints of interference, there remains a coherent and remarkably consistent body of authority which our domestic courts must take into account and which shows that interference is not easily established.’

(3) ‘ It is also clear that there were three schools in the area at which the wearing of the jilbab was permitted. The respondent’s application for admission to one of these was unsuccessful because the school was full, and it was asserted in argument that the other two were more distant. There is, however, no evidence to show that there was any real difficulty in her attending one or other of these schools, as she has in fact done and could no doubt have done sooner had she chosen. On the facts here and endeavouring to apply the Strasbourg jurisprudence in a reasonable way, I am of opinion that in this case (unlike Williamson, above, para 41, where a different conclusion was reached) there was no interference with the respondent’s right to manifest her belief in practice or observance’.