Lord Justice Buxton :
Introduction
- This appeal from a decision of Elias J concerns the
compatibility of section 548(1), as amended, of the Education Act 1996 with
various provisions of the European Convention on Human Rights [the
Convention]; principally, though not exclusively, article 9(1) of the
Convention and article 2 of the First Protocol thereto. Section 548(1)
provides that:
"Corporal punishment given by, or on the authority of a member
of staff to a child for whom education is provided at any school….cannot be
justified in any proceedings on the ground that it was given in pursuance of
a right exercisable by a member of staff by virtue of his position as
such."
Similar provisions had existed in earlier legislation. The significant
change in those provisions, achieved by an amendment to the Education Act made
by section 131 of the School Standards and Framework Act 1998, was to extend
this prohibition even to staff in wholly private schools.
- I first give an account, drawn from the evidence
before the court, of the beliefs and practices of the appellants, teachers and
parents at certain private schools, which they allege are interfered with by
section 548 in breach of the Convention. Such an account is necessary, not
merely as background to the appeal, but also because the claim to be entitled
to the protection of the Convention depends on a precise understanding of what
it is that is sought to be protected. Next, I set out the asserted interests
of the parents who send their children to the schools, on the one hand; and of
the teachers who work in and manage those schools on the other; and describe
how those interests are interfered with by section 548 on its normal, domestic
law, construction, applied without reference to the Convention. I then set out
my conclusions as to whether section 548 does, in the case of either the
parents or the teachers, infringe the rights under the Convention that they
assert in this case; and give my reasons in support of those conclusions.
The appellants' beliefs and their practices
- The appellants are teachers at, and parents who send
their children to, a number of independent private schools established
specifically to provide Christian education based on biblical observance. It
is a feature of the regime administered by the teachers at all of these
schools that in appropriate cases discipline will be enforced by the use of
corporal punishment, an arrangement to which all of the parents agree.
- It is the appellants' case that the use of corporal
punishment is based upon Christian principles, though the nature, and the
intensity, of the stated connexion differed between various of the appellants
who had offered evidence to the court below. The essence of the appellants'
beliefs was however summarised thus in their written submissions to this
court:
It is a central tenet of the Christian religion that mankind is
born with a heart inclined to evil; disciplining in the educational context
is therefore vital. It is not an 'optional extra', but corporal punishment
is expressly sanctioned, approved and may be necessary. Judicial notice can
be taken that current views on the approach to educational requirements of
children are contrary to orthodox Christian teaching.
- In evidence, Mr Williamson, the headmaster the
Christian Fellowship School, Liverpool, and the only deponent before Elias J,
said:
All teaching staff, and all parents have made considerable
sacrifices to place their children within a Christian education, which has
strict observance to the Bible according to their religious beliefs. As part
of our beliefs we believe it is an integral part of the teaching and
education of children both by their parents, and by teachers, that physical
discipline should be administered if and when appropriate. Obviously such
punishment must always be within the law, and no person concerned with the
case has ever been involved in any criminal offence involving the punishment
of children, abuse or otherwise. Unfortunately, when putting these beliefs
forward, we are often accused of abusing children which is wholly untrue
without foundation and an attack on the exercise of our religious
beliefs.
- A more detailed account of the perceived
justification for the practice was given by Mr KG Jones, the Principal of the
Maranatha Christian School, who had given evidence in an earlier application
to Strasbourg, which evidence was admitted before Elias J:
The Bible and a 1000 years of British history, that rests on it,
provide significantly compelling reasons to use loving corporal correction
to train a child. Train up a child in the way he should go and when he is
old he will not depart from it [Book of Proverbs, 22.6]. Foolishness is
bound up in the heart of a child, but the rod of correction will drive it
far from him [Proverbs, 22.15]. Do not withhold correction from a child for
if you beat him with a rod, he will not die. You shall beat him with a rod
and deliver his soul from hell [Proverbs, 23.14]. In sum, it is an essential
of the Christian faith that loving corporal correction be utilised in the
development of Christian character in my pupils. Further, it is a basic of
religious liberty that the parents whom I serve be permitted to delegate to
the School the ability to train children according to Biblical
principles.
- Reliance was also placed before the judge, and
before us, on Proverbs 13.24:
He who spares the rod hates his son, but he who loves him is
diligent to discipline him.
- It was the general view of the appellants that the
justification for, or requirement of, their practices came from those
scriptural sources. Thus Mr Williamson, in further evidence to which I shall
have to return, said:
A fundamental reason for the child to be sent to a Christian
school is for the maintenance of a disciplinary policy in accordance with
the Book of Proverbs.
In that connexion, I of course accept and respect the observations of Rix
and Arden LJJ that the content of a religious belief is not necessarily to be
found solely in scriptural sources, but may be developed from those texts by
interpretation and insight. But Mr Williamson's evidence would seem to
demonstrate that, in this case, the religious obligation to employ corporal
punishment that these appellants assert is found by them in the literal
wording of the texts that they cite from the Book of Proverbs.
- A number of statements were produced from parents
explaining their support for the institution of corporal punishment. These
varied in content and emphasis, but a consistent theme amongst them was that
corporal punishment was "biblical". Many of them also expressed the view that
corporal punishment works.
- However, the actual practice in the schools in
question is, on the evidence, somewhat different from what might be assumed to
follow from these theological positions. Mr Jones explained that his school
employed a very wide range of punishments, and that corporal correction was
reserved for "some cases of a severe moral offence". The act of physical
punishment is done lovingly, after full discussion, and only if the child
"volitionally accepts the need for this correction". The infliction is done as
correction, not as a punishment, and takes the form of a thin, broad flat
paddle administered to both buttocks simultaneously in a firm controlled
manner. The appellants were adamant that there was no question of beating in
the traditional sense: "smacking" was closer to the mark (see Elias J's report
of the submissions before him, at §4 of the judgment). And it was emphasised
that nothing was done that fell within the prohibition on degrading treatment
or punishment in article 3 of the Convention.
- There was disagreement between the witnesses as to
the desirability of punishment incurred for infractions of school discipline
being administered not by the teachers but by the childrens' parents. This
issue became one of some importance in the context of a particular line of
authority in the ECtHR that I address at the end of this judgment. Mr Jones
said that in his school the preferred course was for a parent to be invited in
to the school to administer the punishment. It was only if that were not
possible that the teachers took action, in the manner described in §10 above.
However, in their further evidence, filed in relation to the line of authority
just referred to, Mr Williamson and a Mr Sammons, the parent of a child at Mr
Williamson's school, strongly repudiated any involvement of the parents in the
infliction of the disciplinary measures. They took this view primarily because
of the delay that would be involved between identification of the offence and
the actual infliction of the punishment, a delay that they considered to be
contrary to scriptural direction:
Because sentence against an evil work is not executed speedily,
therefore the heart of the sons of men is fully set in them to do evil
(Ecclesiastes chapter 8 verse 11).
Further, the evidence said that the school wished to follow a consistent,
and public, disciplinary policy, which might be disrupted by the involvement
of individual parents; and that parents might not be able to attend the school
at short notice, and in any event did not wish to suffer the emotional trauma
of administering discipline without first-hand knowledge of the incident.
- When the court asked for an explanation of this
discrepancy, Mr Diamond, counsel for the appellants, said that, as in respect
of other beliefs, differing views might be taken as to the extent and detail
of the application of the beliefs. What united all of the appellants was the
belief that the evil heart of man had to be addressed by physical correction.
The actual application of that belief might vary between different adherents:
as the evidence in this case indeed demonstrated.
The interests of the parents and of the teachers
- In the present state of English law, it is a
defence to what would otherwise be a criminal assault by a parent on his child
that the parent was inflicting "reasonable chastisement" on the child. The
limits of this parental right or liberty are obscure, as is the point at which
such chastisement becomes unacceptable to the extent that a failure on the
part of the state to use the criminal law to control the parent engages the
state's responsibility under article 3 of the Convention: see A v UK
(1998) 27 EHRR 611. This last, and difficult, issue does not, however, arise
in our case, since it was accepted that nothing was done to the children by
the teachers that, if it had been done by a parent, would have exposed the
parent to civil or criminal claims for assault, or would have exposed the
state to any liability under article 3.
- But under the regime in issue in the present case,
although at least in some schools the punishment may be inflicted by a parent
at the instance of the school, where for any reason that does not occur the
teachers assert a right not only to adjudicate upon the child's behaviour, but
also themselves to administer the corporal punishment in respect of that
behaviour. Teachers as a class were, under the common law, protected against
charges of assault, provided they inflicted only "reasonable chastisement", by
the fact that the parent had delegated or transferred to them responsibility
for, and thus power over, the behaviour of the child. I however agree with
Elias J, in his analysis in §§ 17-18 of his judgment of Clearly v Booth
[1893] 1 QB 465 and Ryan v Fildes [1938] 3 All ER 516, that such
delegation was seen as constituted by the general act of sending the child to
school, rather than as an ad hoc power conferred in a particular case.
That conclusion is supported by the practical reflection that unless the
delegation were to teachers in their capacity as such, and to support their
general exercise of authority within the school, it would have been necessary
for the parent to adjudicate in each case upon whether the particular offence
merited punishment at all: a point that is indeed taken, as an argument
against parental involvement, in the appellants' evidence referred to in §11
above. We can also no doubt take judicial notice of the fact that, when
corporal punishment was in general use in English schools, direct involvement
of the parents was not the general practice; and it was certainly not the
practice in the cases that upheld the teacher's right of correction. As Tucker
J put it in Ryan v Fildes:
"when a parent sends his child to school, he delegates to
teachers at the school the power to inflict moderate and reasonable corporal
punishment in a proper case, and…he delegates to the teacher the taking of
such steps as are necessary to maintain discipline with regard to the child
committed to the teacher's care."
- It was that exemption or liberty that was removed
by section 548, which removes any protection for the teacher asserted "by
virtue of his position as such [teacher]". That was precisely the basis of the
common law exemption explained in the preceding paragraphs: the teachers were
protected under the common law authority there cited because the children had
been placed in their care as teachers. With the removal of that
exemption, they are exposed to liability for civil and criminal sanctions in
just the same way as anyone else who commits an assault.
- If, therefore, section 548 is open to objection on
Convention grounds, the teachers have two grounds of complaint. First, they
are exposed to sanctions, not only legal sanctions, but also under the regime
for the control of education operated by the respondents loss of livelihood,
if they continue to inflict corporal punishment on their pupils. Second, they
are effectively prevented from running, and offering to the world, an
educational regime that includes corporal punishment as part of its scheme of
pupil management: an element in the ethos of their schools to which they
attach importance. Accordingly, the practical effect of section 548 is, as its
cross-note asserts, "abolition of corporal punishment" as part of the school
regime. If section 548 is inconsistent with the Convention, the teachers would
therefore be victims for the purposes of section 7(7) of the 1998 Act, because
section 548 takes away from them the ability to run the schools as they wish.
- What of the parents? They are by the same token
deprived of the availability for their children of schools that provide the
regime described in the evidence in this case. They would also therefore be
"victims" of section 548. Section 548 would not bite upon a specific
delegation to a teacher by the parent in a particular case of the parent's
power to inflict reasonable chastisement. However, the question of whether, as
the judge thought at §26 of his judgment, such a delegation is not in any
event possible in English law need not detain us, because the facts of this
case, and the regime that both teachers and parents wish to retain, do not
support an analysis in terms of specific delegation of that type. The
delegation here involved is of the nature described in §14 above. It occurs
and is completed by the act of sending the child to a school that offers this
particular form of discipline, a regime that is agreed to, in general and
comprehensive terms, by the parents before they enter the child. Elias J
correctly analysed the factual position in the present case when he said of
the parental delegation argument, at §28 of his judgment:
"It would still be the case that the parent would be expressly
delegating the power only because the recipient was a teacher. It is only
because of his office that the parent wishes him to be able to impose the
sanction. In administering the punishment, the teacher would therefore still
be exercising the power by virtue of his position as such. He would,
therefore, fall firmly within the terms of [section 548]."
- The relief sought by all of the claimants is a
declaration that
"Section 548 of the Education Act 1996 as amended does not
prevent a parent delegating to a teacher in an independent school the right
to administer physical punishment. A teacher who so administers physical
punishment on the basis of an expressed delegation by a parent in writing,
does not act unlawfully or unprofessionally"
For the reasons set out in the preceding paragraphs, I am clearly of the
view that section 548, understood in its primary, domestic, construction does
indeed prevent such delegation, at least when the "delegation" is to teachers
in schools of the type and with the regime and practices that both the
teachers and the parents engaged in this case wish to maintain. We are
therefore unavoidably obliged to consider whether that inhibition is lawful in
view of the obligations of the United Kingdom under the Convention.
Summary of the conclusions of this judgment
- It will be convenient here to summarise my
conclusions
i) As a general background to consideration of the specific issues in the
case, it has to be noted that the evidence of the beliefs and practices of the
parents and the teachers reveals a significant degree of unclarity as to the
basis upon which corporal punishment is inflicted, and disagreement as to the
implementation in practice of the beliefs asserted.
ii) However, whatever conclusions as to the content and nature of their
beliefs may follow from the analysis that is referred to in (i) above, neither
the teachers, in inflicting corporal punishment, nor the parents in supporting
its infliction within the school, manifest those beliefs in the sense of that
expression as it is used in article 9(1) of the Convention. Article 9 is not,
therefore, engaged in this case in any event.
iii) Article 2 of the First Protocol to the Convention is concerned solely
with the rights of parents, and therefore the interests of the teachers are
not engaged by it.
iv) The parents are potentially beneficiaries of article 2, but the beliefs
expressed and sought to be practised by them in this case do not, for the
reasons referred to in (i) above, attain the level of cogency and cohesion
that is required if those beliefs are to count as religious and philosophical
convictions of the nature that are protected by article 2.
v) Further, and in any event, the relevant belief can only be analysed as
being that corporal punishment should be inflicted for breaches of school
discipline. Infliction of such punishment by the parent, rather than by the
teacher, would fulfil that belief, and therefore neither the parents nor the
teachers can rely on the belief to protect infliction of punishment by the
teachers. Such infliction of punishment by the partents would not be impeded
by section 548, which is concerned solely with the conduct of the
teachers.
vi) Claims that section 548 infringes either article 8 or article 10 of the
Convention are without foundation.
- I would, therefore, dismiss this appeal. However,
the general importance of some of the issues involved requires me to explain
in some detail the reasoning that leads me to that conclusion.
Religious belief as demonstrated by the evidence
- Article 9 protects the manifestation of religion
or belief. Article 2 of the first protocol protects religious and
philosophical convictions in the context of education. Before considering the
detailed jurisprudence of those two provisions of the Convention it is
necessary to say something more about the nature of the religious beliefs
engaged in this case. It is right to record that the appellants strongly
criticised any such investigation on the part of the court. In their view, if
I understand it correctly, a secular court, faced with an assertion of a
religious belief, must take that stated belief at face value, and, except at
least in extreme cases, should not seek to adjudicate upon its basis or
validity. I have no difficulty, at least in general terms, with the latter
contention, and do not seek to pass any judgement upon the appellants'
beliefs. But when, as in this case, the court is asked to adjudicate upon
whether the practice of a particular belief is interfered with by legislation;
and whether that interference is contrary to the requirements of the
Convention; it cannot possibly address that question without a clear
understanding of what the belief in question is, and how it is followed
through in practice. I have already said enough in this judgment to indicate
that in this case the answers to those questions are, on the material before
the court, far from self-evident. The court must, therefore, look at that
material with particular care.
- It would be wrong if I did not say immediately
that I am caused considerable difficulty by the gap that is apparent from the
evidence set out earlier in this judgment between the actual practice of the
appellants and the imperatives of the scriptural authority by which those
practices are said to be justified. Nor have I found myself able to explicate
those beliefs by reference to more general Christian precepts. The court can
only proceed on the evidence before it: indeed, as I have already indicated,
the appellants urged very strongly that it is not our role to bring to the
case our own understanding of the nature of religious belief. No such wider
Christian precepts were explained in evidence, nor were they supported by any
biblical authority, either generally or in specific relation to corporal
punishment: despite the emphasis in the evidence upon the strict biblical
basis of the appellants' beliefs. And while a good deal was said about general
Christian principles of love and forgiveness, it is not those principles, but
much more specific Biblical authority, as cited by the appellants from the
Book of Proverbs, that is claimed to mandate the obligation or right of these
Christians to inflict corporal punishment at all: which is the question that
is in issue in this case.
- Accordingly, we have to give close attention to
the biblical texts that were relied on in the evidence, the most significant
of which I have set out in §§ 6-8 above. Any fair reading of those texts
indicates a regime very different from that which the appellants practise and
ask this court to authorise. Injunctions not to spare the rod; to beat the
child with a rod to deliver his soul from hell; and, in the appellants'
argument before us as set out in §4 above and repeated in the oral submissions
summarised in §12 above, to confront children who, as a class, are born with
hearts inclined to evil; would seem to call for use of physical punishment on
a much more extensive basis, and in a more rigorous form, than that in fact
adopted by the appellants. And, in particular, the biblical texts hardly seem
to contemplate the witholding of corporal punishment where the child does not
volitionally accept the need for that form of correction: which is stressed as
a feature of the regime that is described in the evidence referred to in §10
above.
- Such a line of enquiry into the precise nature of
the belief that is asserted is forced on the court specifically because of the
importance that the Convention attaches to religious belief, and to a proper
analysis of the nature of that belief, as demonstrated in the judgment of the
ECtHR in Kokkinakis v Greece (1993) 17 EHRR 397, cited in more detail
by Rix LJ in § 143-144 of his judgment. If, as I consider to be the case, the
practice relied on does not follow the statements of belief on which it
purports to be based, then it is much more difficult to accept that the
practice is an expression of a religious imperative, as opposed to being a
feature of a regime whose connexion with religion is much more elusive. And in
our case the difference is not merely in matters of detail and degree. I have
not found it at all possible to reconcile the carefully hedged-around and
limited practices described in the evidence with the scriptural injunctions
that are said to mandate them. Those practices, although based on the broad
injunctions of the Book of Proverbs, seem to be worked out as a matter of
judgement in each separate school: as was indeed effectively conceded, in the
context of the disagreement as to whether or not the punishment could be
inflicted by the parents, as described in §12 above.
- I return to these considerations when I address
article 2 of the First Protocol. First, however, I address article 9: which in
my view is not engaged in this case whatever view is taken of the nature of
the religious beliefs asserted by the appellants.
Article 9
- The relevant part of article 9 relied on by the
appellants is freedom to manifest religion or belief. Section 548 does not
interfere with anyone's freedom to believe in, or to seek to persuade others
to believe in, the merits of corporal punishment, whether on religious or on
secular grounds. It does not prevent democratic activity, in whatever form, to
seek to reintroduce corporal punishment in schools, whether public or private.
Nor does it prevent the parents from themselves inflicting corporal punishment
on their children. Article 9 is therefore only engaged if the teachers when
inflicting corporal punishment, and the parents when supporting them in that
action, are manifesting their religion or beliefs.
- I will accept for the purposes of this part of the
enquiry, as did the judge, that the punishment that the teachers inflict and
that the parents support is seen by them as inflicted and supported in pursuit
of a religious belief; even though, as I have already indicated, the nature
and basis of that belief is somewhat elusive. However, the immediate question,
whatever in detail may be the belief that is engaged, is whether the parents,
in supporting the regime of corporal punishment practised in the schools, and
the teachers in inflicting that corporal punishment, "manifest" that belief.
- An early case on this issue is the decision of the
Commission in Arrowsmith v UK (1978) 3 EHRR 218. There the Commission
said, at §70:
Article 9(1) enumerates possible forms of the manifestation of a
religion or a belief, namely, worship, teaching, practice and observance
(par le culte, l'enseignement, les practiques et l'accomplissement des
rites)
Arrowsmith, a pacifist, distributed leaflets to soldiers due to be posted
to Northern Ireland, encouraging them to refuse to serve. The Commission
accepted that in distributing the leaflets she was motivated by her pacifist
beliefs, but found, at §75, that
The leaflets did not express pacifist views. The Commission
considers, therefore, that the applicant, by distributing the leaflets, did
not manifest her belief in the sense of Article 9(1).
That was because, in the Commission's view of article 9 as analysed in §71
of its decision,
Public declarations proclaiming generally the idea of pacifism
and urging the acceptance of a commitment to non-violence may be considered
as a normal and recognised manifestation of pacifist belief. However, when
the actions of individuals do not actually express the belief concerned they
cannot be considered to be as such protected by Article 9(1), even when they
are motivated or influenced by it.
- This view of article 9 was also adopted by the
Commission in X v United Kingdom (1984) 6 EHRR 558:
Article 9 primarily protects the sphere of personal beliefs and
religious creeds, i.e. the area which is sometimes called the
forum internum. In addition, it protects acts which are intimately
linked to these attitudes, such as acts of worship and devotion which are
aspects of the practice of a religion or a belief in a generally recognised
form.
- This apparently limited approach to Article 9(1)
followed from a close consideration of the text of the article. The somewhat
stilted language of the English version of the article, and the use of the
word, unusual in English, "manifest", is explicible, as the Commission
recognised in the passage quoted above from §70 of its decision, by its being
a translation from the French. The French text makes clear, as the Commission
found, that the article 9(1) protection is rooted in the concept of religious
teaching and worship. Both such activities involve, as the Commission put it
in its §71, the "expression" of belief. Where such expression is absent,
article 9(1) is not engaged.
- The ECtHR has paid similarly close attention to
the detailed wording of article 9, and to the illumination that is to be found
from the French text. Thus in a case concerning Jewish ritual slaughter,
Jewish Liturgical Association v France (2000) 9 BHRC 27 at §73, the
Court said:
"The court next reiterates that art 9 lists a number of forms
which manifestation of one's religion or belief may take, namely worship,
teaching, practice and observance (see Kalac v Turkey, para 31). It
is not contested that ritual slaughter, as indeed its name indicates,
constitutes a rite or "rite" (the word in the French text of the convention
corresponding to 'observance' in the English), whose purpose is to provide
Jews with meat from animals slaughtered in accordance with religious
prescriptions, which is an essential aspect of practice of the Jewish
religion."
The Court's view of the limits of article 9 within worship, teaching and
ritual is reinforced by the authority that it cited in Jewish Liturgical
Authority, Kalac v Turkey (1997) 27 EHRR 522, where the Court said, at
§27:
"Article 9 lists a number of forms which manifestation of one's
religion or belief may take, namely worship, teaching, practice and
observance. Nevertheless, Article 9 does not protect every act motivated or
inspired by a religion or belief."
- This guidance from the Commission and from the
Court makes it particularly important to consider with care the nature of the
activity that is said to be protected by article 9. What section 548 prohibits
is the infliction of corporal punishment by teachers, even with the approval
or authorisation of the parents. As already observed, it does not prevent the
holding of beliefs in favour of corporal punishment, nor the proselytising of
those beliefs, nor even the teaching of them in the schools. The question
therefore is whether the teachers, when they inflict corporal punishment as
part of their educational work, manifest a religion or belief in the sense
analysed by the Commission and the Court.
- Viewed objectively, the act of inflicting corporal
punishment is entirely neutral as to the beliefs that inspire it, as it is as
to the beliefs that, in the language that the Commission adopted in
Arrowsmith, it expresses. In the days when corporal punishment was
endemic in the British educational system, those who practised it no doubt had
a wide variety of reasons for thinking it to be necessary. Similarly in the
case of Miss Arrowsmith. Opposition to the presence of the British Army in
Northern Ireland, even when it took the unlawful form adopted by Miss
Arrowsmith, could be, and was, based by a wide range of people on a wide range
of arguments. Objectively, such opposition said nothing about, did not
manifest, pacifism. The Commission regarded that as fatal to Arrowsmith's
case, even though it accepted that pacifism was the motivation for her
objective actions. In holding thus that religious motivation was not enough,
the Commission was exactly anticipating what was said by the ECtHR in
Kalac, cited in §31 above. I can see no difference in the present case.
The infliction of corporal punishment expresses nothing as to the religion of
the inflicter. That it is accompanied by assertions as to religious
motivation, none of which are in any way rendered unlawful by section 548,
does not alter the position; any more than Miss Arrowsmith's assertions of
pacifist motivation were seen by the Commission as bringing her within article
9.
- I would make two further points. First, we have to
decide whether we are to take in any way seriously the language employed by
the Commission in X v United Kingdom, cited in §29 above. The
Commission said that article 9 protects acts
"which are intimately linked to [religious] attitudes, such as
acts of worship and devotion which are aspects of the practice of a
religion"
That approach is of a piece with that of the Court in Kalac, cited
in §31 above, which sees article 9 in terms of acts of worship and ritial. On
that basis, it seems impossible to bring the acts of corporal punishment in
the present case within the ambit of article 9. Whatever may be claimed as to
the scriptural authority for that form of punishment, the act of inflicting it
is simply not an act of worship or devotion, nor a "rite", nor any act of
teaching or observance that is reasonably cognate to such acts. Nor did the
Commission in X v United Kingdom suggest that its formulation was by
way of example only, or the expression of a narrow form of a much wider
regime. It plainly spoke as it did because it continued to see article 9 as
limited to distinctively religious or propagandist activity: as it had
formulated the matter in Arrowsmith, and as the Court subsequently
viewed article 9 in Jewish Liturgical Association and Kalac.
- I accept that it is possible (though I have found
no case that actually supports the proposition) that article 9(1), when it
refers to the protection of manifestation of belief by "practice", may extend
further than the core meanings of worship, devotion and proselytism that are
stressed in the authorities already cited; and I would countenance that
possibility even though the use in the French text of the plural form
"practiques" does suggest something closely allied to worship. On this view,
an established practice that is mandated by a particular religion as a
necessary expression of its beliefs would be protected by article 9(1). But
the present case does not qualify under this rubric, however widely this
aspect of article 9(1) may be viewed. As we have seen, the "practice" in the
present case cannot be stated more clearly than that corporal punishment
should be available for some sorts of offences, but with the mode of
administration; the identify of the persons who administer the punishment;
and, it would seem, the types of offences for which it is imposed; varying
between believers on no more worked-out basis than their particular perception
of the limits imposed by Christianity, very broadly understood. It is quite
impossible to characterise the practice or practices sought to be protected in
this case as a clear, uniform and agreed requirement of the religion in
question; in contrast to, for instance, the requirements of dress or diet
imposed by some non-Christian religions. The various acts of the appellants in
this case are, as is accepted, motivated by religious belief; but for the
reasons indicated they cannot qualify as the practice, in article 9(1) terms,
of that belief.
- It follows that I am respectfully unable to follow
the analysis adopted by Rix LJ at §165 of his judgment that Arrowsmith
is a decision limited to, or at least strongly constrained by, its own facts.
In my view, the Commission carefully reasoned out the ambit of article 9 in
general terms; reinforced that analysis in its subsequent decision in X v
United Kingdom; and was supported in that analysis by the Court in the
cases that I have already cited.. I am also, with equal respect, unable to
accept the view of Rix LJ, at § 166 of his judgment, that the decision of the
Strasbourg Court in Kokkinakis offsets or differs from the
jurisprudence of Arrowsmith. Proselytism, the activity in issue in
Kokkinakis, is of the very essence of manifestation of belief as
understood in Arrowsmith. The Commission so said in terms, at §71 of
its decision in that case:
"Public declarations proclaiming generally the idea of
pacificism and urging the acceptance of a commitment to non-violence may be
considered as a normal and recognised manifestation of pacifist
belief"
That the Court in Kokkinakis protected the act of urging others to
adopt a particular religion was therefore wholly in accord with
Arrowsmith. And I would add that the actual decision in
Kokkinakis does not in any event assist in our case, because the acts
in issue here are not on any view ones of proselytism.
- Mr Diamond, appreciating the difficulties that
Arrowsmith presented for the appellants' case, said that the case had
been wrongly decided; only carried the authority of the Commission; was out of
date; and should not be followed by us. I am afraid that I cannot agree with
those arguments either. I would be prepared to agree that the court's
obligation under section 2 of the Human Rights Act to "take into account" the
jurisprudence of the Convention organs, including the Commission, does not
place the English courts under an obligation to follow that jurisprudence just
as if it were binding domestic authority. At the same time, however, the court
must tread very carefully even where it thinks that rulings by the Court or
Commission may eventually prove to have been mistaken. I would venture in that
connexion to refer to the judgments in this court in R (Taylor) v SSHD
[2002] 2 WLR 1143. I am certainly not prepared to ignore, and much less to hold to
have been wrong, a reasoned decision of the Commission such as
Arrowsmith: which, as I have sought to demonstrate, pays careful regard
to the text and to the objectives of the article of the Convention that it had
under review. The approach in Arrowsmith has, moreover, been reflected
in the more recent judgments of the Court, already cited. Mr Diamond said that
those authorities also did not approach article 9 in the correct manner.
Again, I am unable to agree.
- It is important also to have in mind the practical
implications if the Commission's limited approach to article 9 is not
respected. As the quotation from the appellants' written argument before this
court that is set out in §4 above indicates, the appellants present their
beliefs as those of orthodox Christianity. The court cannot shield from its
attention the fact that adherence to orthodox Christian belief commits
believers to the obligation to perform, or to the permissibility of
performing, a very wide range of acts in society, of which the disciplining of
school children by one means rather than another is only one example. If the
appellants are right, all such acts are, by the very fact of their actual or
asserted religious motivation, protected from control by the state by the
provisions of article 9. But both the Commission and the Court have limited
the reach of article 9 by not extending its protection to acts performed for
religious motives simply on the ground that such a claim can be made for them.
- Nor is it possible to avoid that difficulty by
saying that no harm is done by interpreting the reach of article 9 widely,
because practical utility can be introduced by arguments under article 9(2).
Such an analysis undermines an important principle of Convention
jurisprudence, that of the balance that that jurisprudence seeks to strike
between the assertion of Convention rights, on the one hand; and on the other
hand the interests of the nations that are the subjects of the Convention in
being free to legislate by democratic means in areas that are potentially
affected by those rights. That balance is struck in different ways and in
different terms according to the particular Convention rights that are in
issue. A conspicuous example of the balancing process, not in issue in this
case, is the development by the Strasbourg Court of the doctrine of the margin
of appreciation. In relation to articles 8-11 of the Convention, the balance
is to be found in the original terms of the Convention itself, by requiring
the respondent state, once the case is found to fall under the first limb of
the article, to justify its legislation; and, rightly, the state is then
limited in the grounds on which that justification may be based. To place the
state under that burden however represents a significant limitation on the
freedom of action of its democratic institutions. I have no doubt that the
Convention organs had that consideration well in mind when interpreting the
ambit of a concept as potentially broad, as in the present case it is asserted
to be, as manifestation of religious belief. That concept is rightly limited
in the Convention to worship, proselytism, and possibly, in the terms
recognised in §35 above, to mandated religious "practice"; because a state
would properly need to demonstrate very strong reasons for interfering with
such activities. But an extension of article 9 beyond those core religious
values and practices unjustifiably widens the restrictions placed on the
state; and inappropriately requires the state to justify legislation that does
not trench upon the important freedoms that article 9(1) does protect.
- For the reasons indicated, therefore, I am of the
clear opinion that the teachers in inflicting corporal punishment, and the
parents in supporting and seeking the infliction of corporal punishment, do
not manifest their religion in the sense in which that expression is used in
article 9.
R (Pretty) v DPP [2002] 1 AC 800
- After the substance of the foregoing parts of this
judgment had been completed, our attention was drawn to the ventilation of
some issues arising under article 9 in the speeches in the House of Lords in
Pretty. We therefore felt obliged to invite submissions on their
relevance to this case. In taking that step the court had in mind that it is
bound by any decision within the normal hierachy of domestic authority as to
the meaning of an article of the Convention, in the same way as it is bound by
such a decision as to the meaning of purely domestic law: see the observations
of Judge LJ in R (Bright) v Central Criminal Court [2001] 1 WLR 662,
682D, approved by this court in Kaya v Haringey LBC [2001] EWCA Civ 677, at §§ 36-37.
- The facts of Pretty are too well known, and
too recent, to require reiteration. Amongst the arguments deployed by Mrs
Pretty in her attempt to oblige the Director of Public Prosecutions to withold
criminal sanctions from her husband if he were to assist her suicide was a
claim that the suicide would be the manifestation on her part of a relevant
belief under article 9. The joinder of issue before the House on this point
can only be understood by reference to the arguments of the parties, to be
found in the official Law Reports. Mrs Pretty argued, [2002] AC at p 805D,
that:
"The right to freedom of thought, conscience and religion
guaranteed by article 9 entitles the claimant to believe in suicide for
herself with the assistance of her husband (see Arrowsmith v United
Kingdom (1980) 19 DR 5), and in refusing the undertaking the Director
has interfered with her right to manifest her belief in that the consequence
of his refusal will be to deny her that assistance."
The intervener:
"A claim to entitlement to manifest her belief in assisted
suicide by practising it lies outside the claimant's right to manifest
belief contemplated [by] article 9. That is intended to apply to religious
practices, not to give individuals a guaranteed right to act generally in
the course of everyday living in pursuance of any beliefs they might hold,
whether religious or secular."
- The House only dealt briefly with this point, and
I would not pretend that its observations could be relied on in the present
case if the general trend of Convention authority pointed in a different
direction. That said, however, it seems clear, first, that the House agreed
with the general thrust of the respondent's argument, as just set out; and,
second, that although recognising that the claim would fail in any event under
article 9(2), Mrs Pretty's argument was seen as not even qualifying under
article 9(1). Thus, per Lord Bingham of Cornhill at §31:
"One may accept that Mrs Pretty has a sincere belief in the
virtue of assisted suicide. She is free to hold and express that belief. But
her belief cannot found a requirement that her husband should be absolved
from the consequences of conduct which, although it would be consistent with
her belief, is proscribed by the criminal law. And if she were able to
establish an infringement of her right, the justification shown by the state
in relation to article 8 would still defeat it."
Per Lord Steyn at §63:
"Counsel submitted that Mrs Pretty is entitled to manifest her
belief in assisted suicide by committing it. This cannot be right. [Article
9] was never intended to give individuals a right to perform acts in
pursuance of whatever beliefs they may hold, eg to attack places where
experiments are conducted on animals. The article does not yield support for
the specific proposition for which it is invoked. In any event, as
discussed, section 2 [of the Suicide Act 1961] is a legitimate, rational and
proportionate response to the wider problem of vulnerable people who would
otherwise feel compelled to commit suicide."
Per Lord Hope of Craighead, at §101:
"The right to freedom of thought, conscience and religion
includes the right to manifest one's religion or beliefs without
interference save as provided for in article 9(2). But here again it strains
the wording of the article too far to say that it gives the person a right
to do whatever her beliefs allow her to do. Yet that precisely is her claim
under this article."
- As I have already accepted, Mrs Pretty's case was
significantly different from our case. At the same time, however, I find it
difficult to see how the House could have dismissed her article 9 claim in the
short order set out above if the construction of article 9 urged by the
appellants in our case were correct. The infliction of corporal punishment is
said to be a manifestation of the appellants' beliefs, not because it is an
act of worship, or of proselytism, but rather because it is undertaken in
pursuit of the appellants', in this case religious, beliefs: a claim of the
very nature that, as it seems to me, Lords Steyn and Hope, whose opinions on
the Convention points were agreed by Lords Bingham and Scott, held not to be
sufficient to engage article 9.
- Accordingly, although because of the brief
treatment of the point in argument I would not be minded to rely on
Pretty as any sort of binding authority on this point, I do nonetheless
respectfully consider that the approach of their Lordships is a significant
pointer away from the construction of article 9 urged by the appellants in our
case.
- I should add, for completeness, that Mrs Pretty's
case was subsequently considered by the Strasbourg Court: Pretty v UK,
Application 2346/02. That Court also dealt with the article 9 point very
shortly, and dismissed it. However, it is not without some interest that in so
doing the Strasbourg Court said, at §82 of its judgment:
"The Court does not doubt the firmness of the applicant's views
concerning assisted suicide but would observe that not all opinions or
convictions constitute beliefs in the sense protected by Article 9 § 1 of
the Convention. Her claims do not involve a form of manifestation of a
religion or belief, through worship, teaching, practice or observance as
described in the second sentence of the first paragraph. As found by the
Commission, the term "practice" as employed in Article 9 § 1 does not cover
each act which is motivated or influenced by a religion or belief
(Arrowsmith v. the United Kingdom, no. 7050/77, Commission's report of 12
October 1978, DR 19, p. 5, at p. 19, § 71)."
I would venture to say no more than that this statement appears to be a
further affirmation of the Court's understanding of the jurisprudence of
Arrowsmith, as already indicated by the Court in the passages from
Kajak and Jewish Liturgical Association that are set out in §31
above.
Section 13 of the Human Rights Act
- This section reads:
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.
The appellants said, in an argument not adduced before Elias J, that this
section placed on the court a particular obligation to protect religious
rights. That should therefore affect the court's approach to section 548, in
the sense of making it particularly alert to ensure that that section, or any
other legislation, did not trespass on the freedom of religious organisations:
which the schools in this case could be said to be.
- I must express some reserve about the last element
in that claim. I am far from certain that Parliament intended the concept of
"religious organisations" to extend as far as schools, or for that matter
bodies such as sports clubs or benevolent associations, that are conducted
according to religious principles; nor can the appellants, or at least the
parents, easily be said to be "members" of the schools. I however do not
pursue that detailed question, because it is clear that in any event section
13 cannot apply in the present case. That is because "the Convention right to
freedom of thought, conscience and religion" plainly refers to the article 9
right. If, as I have found, the appellants' conduct does not involve exercise
of the article 9 right, then section 13 cannot be engaged, and adds nothing to
the argument.
- I do not agree that that interpretation evacuates
section 13 of all meaning. The section appears to contemplate a case, quite
different from the present case, where article 9 prima facie applies, but is
thought to be in conflict with other rights, either arising under the
Convention or otherwise, such as rights under employment or discrimination
legislation. What exact process the court is then required to go through in
having "particular regard" to the "importance" of the article 9 right; and
whether a presumption of priority of one article of the Convention over others
is consistent with the United Kingdom's obligations under the Convention,
including in particular its obligations under article 17; will be questions
for another day.
Article 2 of the First Protocol
- This article, which has stood in the Convention
since 1952, reads:
No person shall be denied the right to education. In the
exercise of any functions that 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.
Whatever may have been the intention of the framers of this article, there
is no doubt that Convention jurisprudence has extended its protection to
private education and to "education" broadly understood, as encompassing the
general school regime as well as the narrow teaching function.
- The latter point was established by the Court in
Campbell & Cosans v UK (1982) 4 EHRR 293, a case strongly
relied on by the appellants, in which parents successfully contended that the
infliction of corporal punishment on their children against their will
entailed a failure to respect their philosophical convictions of opposition to
such treatment.
- The United Kingdom had argued before the Court in
Campbell & Cosans that, if the applicants were right, parents could
object to any form of disciplinary treatment. The Court refuted that argument
by pointing to the narrow meaning of "convictions" as the term is used in
article 2. It said, at §36 of its judgment:
In its ordinary meaning the word 'convictions', taken on its
own, is not synonymous with the words 'opinons' and 'ideas', such as are
utilised in Article 10 of the Convention, which guarantees freedom of
expression; it is more akin to the term 'beliefs' (in the French text:
'convictions') appearing in Article 9….and denotes views that attain
a certain level of cogency, seriousness, cohesion and importance…..Having
regard to the Convention as a whole, including Article 17, the expression
'philosphical convictions' in the present context 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 applicant's views relate to
a weighty and substantial aspect of human life and behaviour, namely the
integrity of the person, the propriety or otherwise of the infliction of
corporal punishment and the exclusion of the distress which the risk of such
punishment entails. They are views which satisfy each of the various
criteria listed above; it is this that distinguishes them from opinions that
might be held on other methods of discipline or on discipline in
general."
- The Court reverted to article 2 in Valsamis v
Greece (1996) 24 EHRR 294. A child of parents who were Jehovah's witnesses
was suspended from school for a day for refusing to attend, during her school
holidays, a parade commemorating Greek National Day. She claimed that
attendance would have been inconsistent with her and her parents' pacifist
beliefs. The Court held that the suspension had not been inconsistent either
with article 9 or with article 2 of the first protocol. It accepted, at §27 of
the judgment, that
The verb "respect" means more than "acknowledge" or "take into
account". In addition to a primarily negative undertaking, it implies some
positive obligation on the part of the State.
Then, however, although Valsamis plainly was not a curriculum case,
the Court went on to refer, in §28 of its judgment, to the curriculum case of
Kieldsen and others (1976) 1 EHRR 711, where the Court said, at §53 of
that report, that
The setting and planning of the curricula fall in principle
within the competence of the Contracting States. This mainly involves
questions of expediency on which is not for the Court to rule and whose
solution may legitimately vary according to the country and the period.
Given that discretion, the Court has held that the second sentence of
Article 2 forbids the State "to pursue an aim of indoctrination that might
be regarded as not respecting parents religious and philosophical
convictions. This is the limit that must not be exceeded".
- Looking objectively both at the nature of the
parade and at the nature of the religious objection to participation in it,
the Court in Valsamis held, at §31, that it could
Discern nothing, either in the purpose of the parade or in the
arrangements for it, which could offend the applicants' pacifist convictions
to an extent prohibited by the second sentence of Article 2 of Protocol No
1….Furthermore the obligation on the pupil does not deprive her parents of
their right to enlighten and advise their child, to exercise with regard to
their child natural parental functions as educators, or to guide their
children on a path in line with the parents' own religious and philosophical
convictions.
The latter part of that observation is again quoted by the Court from its
judgment in Kjeldsen and others.
- The appellants said that that jurisprudence, and
in particular the statement in Campbell & Cosans, led to a simple
solution in our case. Their belief in the need to have corporal punishment
available had quite as much cogency, seriousness, cohesion and importance as
did Mrs Campbell's belief that corporal punishment should not be available. If
Mrs Cambell's conviction on the one side of the argument about corporal
punishment had to be respected, so should be their conviction on the other.
And their conviction did not infringe the human dignity of the child, but
rather enhanced it by its respect for what Mr Jones, the headmaster quoted in
§10, above described as the development of Christian character in the pupils.
- Elias J did not accept this argument. He said this
at §§ 44-46 of his judgment, in a passage that because it is severely
criticised before us I am constrained to set out in full:
44. There is some attraction in this argument, but ultimately I reject it.
It is seeking to equate the non-administration of corporal punishment with its
administration and to say that both constitute a philosophical or religious
conviction. In my judgment, as the European Court of Human rights appears to
have thought, the two cannot simply be equated in that way since the law is
not neutral about the imposition of physical force. The law has always shown a
respect for the physical integrity of the individual: any intentional assault
is unlawful unless there is a defence of justification. Accordingly, it
requires a stronger case to justify the right to inflict physical injury than
to justify a right not to have it inflicted.
45. In my view this reflects a more deep-seated distinction between the two
positions. The belief that no corporal punishment should be imposed can
properly be described as a philosophical or (in some cases) religious
conviction. It is a belief that in principle no one should be so punished. By
contrast, I do not consider that a belief that corporal punishment should be
imposed can properly be so described. This has got nothing to do with the
genuiness of the belief or its intrinsic merits. Rather it has to do with its
nature and character. Nobody suggests that the corporal punishment should
automatically be applied to all children as a matter of principle. For some
children it may never be necessary. It is envisaged that it will be needed
only for rare cases of relatively serious indiscipline. The parents wish it to
be administered in such circumstances because they consider it to be more
efficacious method of securing appropriate discipline. I do not think that it
is appropriate to describe a belief that one measure is more effective than
another as a philosophical or religious conviction even if the reason for
holding that belief is that it is supported by a religious text. It is not one
of the articles of faith. It may be accurate to say that someone has a
religious conviction that everything in the Bible is true, but it would be
surely odd to describe, say, a belief in angels as a religious conviction or
as itself constituting an article of religious faith. It is a belief which is
in accordance with the religious faith, but it does not embody or define the
belief or conviction itself.
46. Even if the parents believe that effective discipline cannot be secured
in any other way, that still does not, in my judgment, convert the belief in
its value as more than a belief – albeit genuinely and strongly held – as to
its efficacy. Corporal punishment is not being invoked for its own sake but in
order to help secure the religious convictions that underpin the Christian
convictions of these families. Accordingly I do not accept that the belief in
the desirability of corporal punishment, even although it is derived from the
Christian convictions held by these parents can be properly defined as a
religious conviction in its own right.
- The appellants criticised this passage, first
because they said that Elias J had "transgressed the State/Church divide". His
analysis involved impermissible discussion of, or speculation about, the
content and nature of the appellants' Christian faith. While, again, I would
not wish to adopt every element in the judge's reasoning, I do not think that
that criticism is valid. As I have already indicated, when faced with claims
as to the nature and content of the "convictions" that are sought to be
protected under article 2 of the first protocol the court, in applying that
article, must necessarily analyse those claims in order to consider whether
the alleged breach of the convictions that they assert infringes the
particular rules of the Convention. That is what I have felt forced to do in
§§ 23-26 above. That is what the Court did in §31 of its judgment in
Valsamis: see §§ 55-56 above.
- As I understood his argument, Mr Diamond said that
because assertions by believers that their belief had been infringed by
particular state or secular arrangements had to be taken as given, the
Strasbourg Court had been in error in Valsamis in entering upon a
review of the nature of the religious faith asserted in that case. Again, I
cannot agree. The broad approach of the Strasbourg Court in Valsamis is
plainly a relevant source of guidance for us.
- The appellants next argued that Elias J was simply
wrong in refusing to accord their belief in corporal punishment the same
"respect" as the belief that corporal punishment should not be imposed that
was respected in Campbell & Cosans. Their belief achieved the
necessary level of organisation and cogency; and was certainly worthy of
consideration in a democratic society. This is the most difficult part of the
case, and has to be approached, as the Court in Valsamis approached the
issue, by an analysis of the claim made by the appellants against the range
and content of article 2.
- It is striking that in Valsamis the Court
appears to have thought relevant to article 2 issues generally the limited
view of the article as prohibiting indoctrination that it had adopted in
Kieldsen and others: see §§ 55-56 above. I do not think that Elias J
was correct, in §53 of his judgment, in resolving the present case by directly
applying to it that observation of the Court, on the basis that no
indoctrination of the children is imposed or permitted by section 548. It is
however clear that the generally cautious view of the reach of article 2 that
was taken in Valsamis must be kept in mind when a court tries to apply
the article in other cases.
- If the parents' conviction were merely that one
method of discipline is more effective than others in certain types of
situation, then it would, I think, be clear that article 2 could not be
engaged. The case would clearly come within the area of questions of
expediency that the Court in Kieldsen and others and in Valsamis
thought to fall within the competence of the national state. Is the case
different because it is asserted that the availability of that method of
discipline is mandated by Christian doctrine or belief?
- At this stage of the argument we have to confront
again the nature and basis of the appellants' beliefs and practices, that I
have discussed in §§ 21-24 above. The appellants say that the source of their
"conviction", in article 2 terms, is to be found in the biblical texts that
they cite. But, as I have indicated, the practice that they wish to justify is
very different from what those texts appear to require. As explained in the
appellants' submissions, the texts mandate confrontation of the evil heart of
man. The practice as to how that is done is however much more limited than
those texts would seem to require, and varies from school to school. The
disparity is sought to be explained by recourse to the Christian message of
love and reconciliation that, as I understand it, leads the appellants to
adopt only a very limited form of corporal punishment, inflicted only in
extreme cases, in a mild manner, and with the consent of the child; and in
some cases inflicted by the parent at the instance of the school, in others by
the teachers themselves.
- I do not doubt the appellants' sincerity in seeing
the Christian message of love and forgiveness as permitting them to inflict
corporal punishment only in the manner and circumstances that they describe. I
am, however, quite unable to see that message, as it is deployed in the
present case, as counting as a "conviction" in the particular sense that
article 2 requires.
- First, as to the present case, what has to be
justified, because that is the activity prohibited by section 548, is the
infliction of corporal punishment at all. There has been nothing shown
to us contained within the general Christian message, as opposed to what is
set out in the specific and much more far-reaching quotations from the Book of
Proverbs, that mandates or even permits corporal punishment. The Christian
message may influence the manner in which the claimants inflict corporal
punishment, or the offences for which they inflict it, but the latter are not
what is in issue in this case. What the claimants have to demonstrate is that
their religion obliges them to inflict corporal punishment: and that
obligation, and the nature and source of it, is, as for instance Mr Williamson
stresses in his evidence quoted in §8 above, to be found in the specific
injunctions of the Book of Proverbs.
- Second, even if it were permissible to rely on an
unspecified appeal to the Christian message in the present context, it would
be to veil reality if the court did not recognise that that message is couched
in extremely generalised terms, and has been interpreted by different groups
as driving to very different conclusions as to belief, behaviour and
tolerance: often, unhappily, in direct conflict with each other. Asserted
adherence to the Christian message, without much more specific exposition of
the particular beliefs that that message engenders, is thus far too
generalised and undefined a position to count as a "conviction" for the
purposes of article 2. That is not because of any scepticism about the
commitment of those who profess that message, whether in this case or
otherwise. Rather, reliance on the Christian message, as that message appears
to the particular individual, necessarily lacks the specific direction of the
belief to the subject-matter in dispute that the Strasbourg Court has seen as
required under article 2. And that unease is reinforced by the disagreements
between the various appellants as to the mode of infliction of the corporal
punishment, that I have referred to in §§ 9-10 above.
- This point can be demonstrated from Campbell
& Cosans itself. It will be recalled that the concern of the United
Kingdom was that, if the applicants in that case were right, objections to any
form of disciplinary treatment could be elevated into a "conviction" that had
to be respected under article 2. It was in response to that concern that the
Court formulated the criteria of an article 2 conviction that are quoted in §
52 above. I would think it plain that a general statement of belief in
Christian principles, without more, could not possibly have been seen as
meeting those requirements.
- I would therefore respectfully agree with the
general approach of Elias J to the particular facts of this case. He pointed
out that corporal punishment, at least in the form that it takes in the
appellants' schools, is not claimed to be an article of faith, nor a measure
that is required for every child or for any but a small number of offences.
And I agree with the judge when he says:
"I do not think that it is appropriate to describe a belief that
one measure is more effective than another as a philosophical or religious
conviction even if the reason for holding that belief is that it is
supported by a religious text"
- The short point is, therefore, that the exposition
of the appellants' beliefs as set out in the evidence before us does not
satisfy the requirements laid down by the Court for the recognition of a
conviction in article 2 terms. The core belief, as explained to us, is the
need to confront the evil heart of man. It is that objective that is said to
justify and require the use of corporal punishment. That is far too
generalised an objective to qualify in Campbell & Cosans terms. And
when belief is carried into action, which is when its operation and
manifestation is allegedly interfered with by section 548, the evidence
reveals a wide range of practices, difficult to reconcile with the belief
itself, and in any event not reaching the level of cohesion and cogency
required by Campbell & Cosans.
- Moreover, I cannot ignore the further observation
of Elias J in §44 of his judgment that, since the law is not neutral about the
imposition of physical force, a more specific justification is likely to be
required for the retention of corporal punishment than for its exclusion. The
Court in Campbell & Cosans referred to objection to the infliction
of corporal punishment as relating to a weighty and substantial aspect of
human life and behaviour, including the integrity of the person and the
exclusion of distress. The Court appeared to think that something of that
order would be required before a conviction sufficient to require alteration
of the state's educational regime could be found. That cautious approach is
also reflected in Valsamis.
- While not undervaluing the appellants' claim that
they address the moral as opposed to the physical integrity of the children,
those convictions only relate to one, in the appellants' practice as described
to us a comparatively rare, way of assisting and supporting that moral
integrity. That is in any event insufficient to count as a conviction in
support of corporal punishment of the type that the Court appeared to require
in Campbell & Cosans.
- I accordingly do not agree that article 2 of the
first protocol requires this court to rewrite section 548 in order to
accommodate the regime that the parents wish to be operated at their
children's schools.
The principle in Kalac v Turkey and other cases
- After argument had closed the court reached the
view that Kalac v Turkey and other related determinations of the
Convention organs might have a bearing on the issues in this appeal. None of
these authorities had been put before us by the parties. We accordingly
invited written submissions from both sides on the authorities, submissions
that were made at some considerable length; and conducted a substantial
further oral hearing. The authorities are fully addressed in the judgment Rix
LJ, in terms that I cannot improve on. I can therefore limit myself here to a
summary account of my own conclusions.
- These cases are in any event a valuable further
reminder of the caution with which the Convention organs approach claims to be
exempted from national laws on the basis of religious belief, and therefore
are of some general relevance to the construction and application of both
article 9 and article 2 of the First Protocol. However, more particularly, the
cases incorporate some more specific principles that are of relevance to our
own case.
- The most important, and most general, of those
principles is that, when faced with a claim asserting interference with the
practice or manifestation of a religious belief, the court must look carefully
at the terms and nature of that belief, in order to see whether it could be
properly and effectively exercised by the claimant in some manner that would
not conflict with the national law. In all of the employment cases [Kalac v
Turkey (1997) 27 EHRR 552; Stedman v United Kingdom (1994) 23 EHRR
CD 168; Konttinen v Finland (application 24949/94)] the point was taken
that the claimant could effectively manifest his religion in a situation
different from that which he had chosen. And, more directly, in Jewish
Liturgical Association v France (2000) 9 BHRC 27 the Court identified the
belief in issue as being the obligation of ultra-orthodox Jews to eat only
glatt, ritually slaughtered, meat, and at §80 said of limitations on ritual
slaughter within France:
"In the court's opinion, there would be interference with the
freedom to manifest one's religion only if the illegality of performing
ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from
animals slaughtered in accordance with the religious prescriptions they
considered applicable."
- It is not necessary to go as far as characterising
the test in terms of impossibility in order to apply the principle to the
present case. In whatever way the asserted belief is analysed, its essence is
that corporal punishment should be available to correct misbehaviour whether
it occurs at home or at school. The end that the parents see their religion,
relevantly to this case, as obliging them to seek, the infliction of physical
punishment in relation to an offence committed at school, can be achieved by
every case being referred by the school to the parent, and the parent himself
inflicting reasonable chastisement in respect of it, either by visiting the
school for that purpose, or when the child returns home. That would not touch
section 548 at all, since the chastisement would not be inflicted by a
teacher.
- I have not overlooked that, when confronted with
this proposition, the appellants produced the evidence of Mr Williamson and Mr
Sammons. They said that what the parents wanted was swift correction of error,
without the trauma and possible inconvenience of direct involvement of the
parents themselves. That could only be achieved by the infliction of
punishment being undertaken by the teachers: the regime that section 548
forbade. There are considerable problems with this evidence. Its claims as to
the attitude of parents generally were really no more than assertion, there
being no indication that anyone other than the two authors had contributed to
the evidence; and there is the substantial difficulty that at least one
school, whose practices are relied on by the appellants elsewhere in the case,
regards parental involvement in the infliction of punishment as a central part
of its regime: see §11 above, and the further account of the evidence that is
given by Rix LJ at §184 of his judgment.. I would, therefore, be most
reluctant to act on the new evidence to reach any conclusion that differed
from that to be drawn from the evidence that was before Elias J. But it is not
necessary to pursue those difficulties further, because in the relevant
context of article 9 and of article 2 of the First Protocol the objections
raised by Mr Williamson and Mr Sammons cannot be characterised as involving
issues of belief or of religious or philosophical conviction, as opposed to
being issues of preferred educational practice. And however diffident one may
be in questioning the appellants' view of scriptural authority, I find it
quite impossible to accept that the injunction in the Book of Ecclesiastes as
to the speedy execution of sentences against an evil work (even if it is read,
as the appellants read it, shorn of the context identified by Rix LJ at §188
of his judgment) can sensibly be employed to make it a matter of religious
faith, as opposed to merely good practice, that punishment for offences by
schoolchildren should be inflicted without the delay involved in consultation
of their parents.
- In this way, therefore, the parents are able to
manifest their belief, in the context of article 9, and to ensure the
education of their children in conformity with their own religious convictions
in the context of article 2 of the First Protocol, without infringing section
548 at all. That is the course that the authority of the Strasbourg Court
requires them to take: a course that follows directly from the nature of the
belief that is asserted in this case.
- The teachers can only have a claim under article
9. That claim can only be based, as I understood Mr Diamond to agree, on a
belief that the school should uphold the parents' obligations with regard to
the rearing and disciplining of their children. It is not possible to say, nor
was it suggested, that the teachers have a belief as to their obligation to
inflict corporal punishment separate and different from the obligation on the
part of the parent to secure its infliction. It follows that, if the parents
adequately manifest their belief by themselves imposing punishment for
offences committed at school, any manifestation of a belief in the same or
similar terms held by the teachers can similarly be manifested by their
participation in a scheme whereby the parents inflict the punishment.
- I have already made it clear that, in my view,
neither the parents' nor the teachers' beliefs are in any event relevantly
infringed by section 548 either in respect of article 9 or in respect of
article 2 of the First Protocol. However, if I were of a different mind on
that general question, I would consider that, for the reasons just set out in
§§ 74-78, the appellants still had no basis of complaint under the Convention,
because a means of acting on their belief in support of corporal punishment
without an infringement of section 548 is reasonably open to them.
Article 8
- Counsel who appeared before Elias J agreed that,
if he could not succeed on the case as already described, he could not succeed
under article 8. Mr Diamond withdrew that concession, if concession it was. He
argued that the required respect for the private and family life of the
parents and of the children was interfered with by section 548's prohibition
of the corporal punishment of the children when at school, even though the
parents saw such punishment as an acceptable, or even necessary, part of the
discipline of their children, and would themselves inflict it at home.
- There were two limbs to this argument. First, that
the Judaeo-Christian tradition is to recognise the autonomy of the family, and
that the state should only interfere with arrangments within the family in
very extreme cases. Second, that activities within the school were either
themselves in private, or were an extension of the privacy of the home, and
interference with those activities interfered with that privacy.
- Both of these arguments suffer from the difficulty
that the children do not go to school simply because of a decision taken by
their parents, but in pursuit of an obligation imposed on the parents by the
state to cause their children to be educated: an obligation that could not
possibly be said to be inconsistent with article 8. The reality is therefore,
as the Court said in Costello-Roberts vUK (1993) 19 EHRR 112[36]:
The sending of a child to school necessarily involves some
degree of interference with his or her private life.
That participation in state-required education; albeit, as in
Costello-Roberts, by means other than those provided by the state
itself; therefore takes the child outside the private and family sphere. The
protection of family values as perceived by the parent can only be achieved in
the educational context through article 2 of the first protocol.
Article 10
- This argument was not raised before the judge. The
appellants claimed that the act of infliction of corporal punishment had
"expressive content". It should be protected as such: just as, for instance,
the Court had seen the physical protests of those who disrupted hunts as
potentially falling under the protection of article 10 in Hashman and
Harrup v UK (1999) 30 EHRR 241.
- The argument is far too broad. First, it is
completely artificial to regard the teachers, when they inflict corporal
punishment; or the schools when with the consent of the parents they include
corporal punishment within the school regime; or the parents when they send
their children to such schools; as expressing opinions or imparting
information. Their position is quite different from that of demonstrators,
such as the hunt saboteurs who blew horns and shouted in order to disrupt the
hunt in Hashman and Harrup; the whole essence and aim of whose
activities is to convey their beliefs. Second, what section 548 prevents is
the teachers acting on their beliefs. It does nothing to prevent them
and the parents from holding those beliefs, or from conveying those beliefs to
others by any means that they think fit. Indeed, were the matter otherwise,
there would in this, or in any other case where particular behaviour is said
to be inspired by 'ideas' (the expression used in article 10), be no need or
room for investigation under article 9, or under article 2 of the first
protocol. The conduct could not in any event be prohibited, because in article
10 terms it expressed the idea that encouraged it.
Wider considerations
- The Secretary of State made no attempt, either
before Elias J or before us, to justify the provisions of section 548 should
they be held to be prima facie inconsistent with the requirements of
the Convention, whether under article 9(2) or in more general terms. In the
event, because article 9(1) is not engaged, that diffidence does not affect
the outcome of the appeal. I will therefore do no more than say that in
another case there may be much to be said as to the justification of elements
in the state's educational provision that conflict with particular religious
beliefs, whether Christian or otherwise; and that therefore, unhappily, this
appeal may not be the last occasion on which the courts are troubled with such
issues.
Disposal of the appeal
- I find persuasive none of the arguments put before
us for holding that the Convention prevents the state from forbidding the
infliction of corporal punishment by teachers in the circumstances described
in the evidence in this case. I would dismiss this appeal.
Lord Justice Rix:
Introduction
- The European Convention of Human Rights protects
rights of religious conscience and practice in two articles, article 9 and
article 2 of the First Protocol. Section 13 of the Human Rights Act 1998 (the
"HRA 1998") underlines the importance of such rights.
- Article 9 provides as follows:
"1. 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 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."
- Article 2 of the First Protocol further provides:
"No person shall be denied the right to education. In the
exercise of any functions that 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."
- Section 13 of the HRA 1998 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) of the Convention right to freedom of thought, conscience and
religion, it must have particular regard to the importance of that
right."
- The issue in this appeal is whether section 548,
as amended, of the Education Act 1996, in extending the prohibition on the
infliction of corporal punishment in schools to independent schools, violates
the appellants' rights under these provisions of the Convention, as supported
by section 13 of the HRA 1998.
- There are three points I would like to make by way
of introduction.
- The first relates to the nature and importance of
the freedoms of thought, conscience and religion guaranteed by the articles
cited above. It is best done by reference to the words used by the ECtHR
itself in Kokkanakis v. Greece (1993) 17 EHRR 397:
"31. As enshrined in Article 9, freedom of thought, conscience
and religion is one of the foundations of a 'democratic society' within the
meaning of the Convention. It is, in its religious dimension, one of the
most vital elements that go to make up the identity of believers and of
their conception of life, but it is also a precious asset for atheists,
agnostics, sceptics and the unconcerned. The pluralism indissociable from a
democratic society, which has been dearly one over the centuries, depends on
it."
- In terms of what has been described as the
forum internum these freedoms are absolute. Thus the qualification
introduced by article 9(2) relates only to the freedom to manifest one's
religion or belief and not to the opening words of article 9(1). The right to
manifest one's religion or belief, although qualified under article 9(2), is
an inevitable extension of the absolute freedoms, since the right to believe
would be worth little without a right to act on that belief. One of the
aspects of the right to manifest which is specifically protected is that of
doing so in teaching. The point is also addressed in article 2 of the First
Protocol so far as the state's obligation to respect the right of parents to
ensure education and teaching in conformity with their own religious and
philosophical convictions is concerned. However, it is when beliefs are acted
upon that they begin to impinge upon other people: hence the need to qualify
the right to manifest, so that a proper balance may be maintained in a
democratic and pluralist society.
- Secondly, however, it is impossible to shut one's
eyes to the great dangers which exist and have always existed in the very
potency of religious belief and in its potential for conflict. Tantum
religio potuit suadere malorum was the comment of a classical poet
(Lucretius, De Rerum Natura, I. 101). Strasbourg jurisprudence does not
perhaps address this danger directly, but it is nevertheless reasonably clear
from the authorities which this court has been required to consider that a
number of techniques have been developed to hold in check the freedoms granted
by the articles under consideration. Thus, (1) the ECtHR has had to consider
what constitutes a philosophical conviction for the purpose of article 2 of
the First Protocol, and has concluded that it must attain a certain level of
"cogency, seriousness, cohesion and importance" and must also be worthy of
respect in a democratic society and not be incompatible with human dignity:
Campbell and Cosans v. United Kingdom (1982) 4 EHRR 293 at para 36. (2)
A distinction has been drawn between an act which manifests or expresses a
belief and one that is merely motivated by it: Arrowsmith v. United Kingdom
(1978) 3 EHRR 218. (3) A doctrine of non-interference has been used to
reject the engagement of article 9 in circumstances where the matter
complained about has not materially impacted on the complainant's rights: see,
for instance, Jewish Liturgical Association Cha'are Shalom Ve Tsedek v.
France (2000) 9 BHRC 27.
- In the present case the Secretary of State
employed the second of these techniques, and argued that the appellants would
not be manifesting or expressing their religious belief in seeking to
implement a policy of corporal punishment at school but were merely being
motivated by that belief. The judge accepted that submission and the
appellants seek to reverse that finding. However the Secretary of State's
primary argument, also accepted by the judge, adopted none of the techniques
listed above, but was rather to the effect that the appellants' belief, albeit
accepted as a genuine one, was not a religious belief. No case in
Strasbourg jurisprudence has been brought to our attention in which this
argument has been adopted. The appellants submit that the judge was in error
in this respect as well.
- At a late stage of these proceedings this court of
its own motion asked the parties to consider a line of Strasbourg
jurisprudence, conveniently but possibly somewhat inaccurately described as
the Kalaç v. Turkey (1997) 27 EHRR 552 line of authority, which had not
been previously cited by them but which deals with inter alia the doctrine of
non-interference referred to at (3) above. The court was concerned to have the
parties' submissions on the nature and ramifications of this doctrine in the
light of evidence from the appellants already before the court to the effect
of the parents' personal involvement in the application of the policy of
corporal punishment adopted at the schools in question. This was because
section 548, while removing from teachers any defence "by virtue of [their]
position as such" based on the application of no more than reasonable
chastisement, made no amendment in the availability of that defence to
parents. As a result, a further substantial hearing took place at which this
line of authority was considered. For the purpose of that hearing, the
appellants submitted further material as to the involvement of parents in the
process.
- In the event, I have come to the conclusion that
the doctrine of non-interference does apply in this case and that the appeal
should be dismissed on that ground, but on that ground only. Had it not been
for this new point, it would have been necessary to consider whether section
548, which I am satisfied for the reasons given by Buxton LJ does, on its
ordinary construction, prohibit corporal punishment by teachers operating the
schemes represented by the appellants' evidence, could nevertheless be
construed pursuant to section 3(1) of the HRA 1998 in such a way as to permit
them. Although the court has not heard developed argument as to how section
548 might be read down pursuant to section 3(1), it was common ground between
the parties that, if necessary, it could be.
- Thirdly, I would wish to express my profound
gratitude to Buxton LJ and Arden LJ, whose judgments I have read in draft with
admiration, for the assistance I have derived from them in clarifying my own
thoughts. I am in substantial (albeit not total) agreement with Arden LJ, and
regret to disagree with many of the conclusions of Buxton LJ, but I have
derived illumination from them both in equal measure. My appreciation and
gratitude is also due to Elias J for his judgment, despite my disagreements
with it.
Corporal punishment at school
- In his judgment below, Elias J made the
preliminary point that the court is not concerned with the merits of the
underlying dispute in the sense that it is not concerned to ask whether it
considers corporal punishment in schools to be desirable or undesirable. That
question of course has been answered in this country by Parliament's
legislation, and subject to the requirements of the Convention and the HRA
1998 it is certainly no business of the courts to second-guess Parliament. In
the European Court, however, there has been no hesitation on the part of
judges from expressing a restrained antipathy to corporal punishment in
schools: see, for instance, para 36 of the judgment of the majority of the
Court in Costello-Roberts v. United Kingdom (1993) 19 EHRR 112 at 135
as well as the partly dissenting opinions and the concurring opinion in that
case at 137/138.
- Despite the apparent antipathy for corporal
punishment in schools identifiable in the opinions of the judges of the
European Court, that Court has not ruled that it is unacceptable in principle,
even if its exercise is closely guarded under the provisions of the
Convention's article 3. There is no complaint on the part of the Secretary of
State that article 3 is engaged in the present case. Nevertheless, it is as
well to bear in mind that, as the judge below and Buxton LJ have remarked, the
law is not neutral about the imposition of physical force and requires it to
be justified. In the past, corporal punishment in schools has been justifiable
in this country, and parental corporal punishment in the home remains so
provided it amounts to no more than reasonable chastisement.
- Nor has Strasbourg jurisprudence outlawed
corporal punishment at home, although there too it will be closely guarded
under article 3: see A v. United Kingdom (1998) 27 EHRR 61. I agree
with the further comments made by Arden LJ in paras 242/244 and 311 of her
judgment. No reliance has been placed by the Secretary of State on the United
Nations Convention on the Rights of the Child.
The evidence
- I refer to the facts set out in the judgments of
both Buxton LJ at paras 3/11 and of Arden LJ at paras 220/225 and 227. I would
emphasise the following elements.
- The appellants claim in their evidence that it
is part of their fundamental Christian religious beliefs that physical
discipline should be administered, if and when appropriate, as an integral
part of the teaching and education of their children, whether in school or in
the home. They also believe, not surprisingly in view of their religious
approach, that such discipline is efficacious, but that is not what
principally drives their concern. The setting for their beliefs can perhaps
best be demonstrated by quoting from the Admission Statement of one of the
schools concerned, viz:-
"Corporal punishment…is never administered with the aim of
humiliation, but to minister justice, forgiveness and reconciliation. In
short, to help form godly character…
"The framework which shapes the behaviour of pupils within a
Christian school must convey a message about God and the way in which he
wants individuals to behave personally and in community.
"God is just, merciful, gracious, loving, righteous, slow to
anger who rebukes and disciplines, that we might partake of his
holiness…"
- The teaching aspect of corporal discipline is
said to be both moral and spiritual and is listed as follows:
"1. It is serious to break a moral code.
2. Pupils are responsible for their actions.
3. Relationships must be maintained.
4. Discipline is for correction not just for
punishment.
5. Wrong actions can be rectified and the conscience
cleared.
6. Justice must be upheld.
7. No remembrance should be made of past
misdemeanours."
- Citations from the Proverbs are provided by the
appellants in support of their beliefs, these being regarded as biblical
precepts. A typical parental letter reads as follows:
"As a Christian it is important to me that my children are
taught in a manner which reflects Christian values and principles. This
includes curriculum content, staff attitudes, and methods of discipline. I
believe that it is important that children learn that there is a consequence
of every action, good or bad, and that corporal discipline has a place in
the disciplinary options of schools."
- The evidence also makes it plain that corporal
punishment is rarely resorted to, only after careful consideration of all the
circumstances of the case, and when thought necessary, mildly applied.
Although the code may differ somewhat from school to school, it seems that it
is not any teacher who may perform the punishment, but only head teachers or
selected members of staff.
- I shall refer to further evidence specifically
relating to the non-interference point at paras 184/188 below.
- No evidence to the contrary has been served on
behalf of the Secretary of State. The evidence given for the appellants is
contained in or annexed to the witness statement of one deponent, Mr Philip
Williamson, the head teacher of the Christian Fellowship School, Liverpool:
but it is clear that he speaks there for the appellants as a whole, who
comprise head teachers, teachers and parents at his and other schools, as well
as for other parents who are not named as litigants in these proceedings but
whose views are demonstrated in the material annexed to his statement. There
is no evidence that the appellants ever have in the past or are likely in the
future to transgress the limitations which they have imposed on themselves in
the exercise of their belief. Thus it is not suggested that the appellants'
claims to authorise a scheme of corporal punishment which is mild, loving and
responsibly administered are incorrect.
The scope of the debate
- It is important at this point to emphasise the
limited scope of the debate undertaken both before the judge and again on this
appeal. No case has been raised on appeal on behalf of the Secretary of State
under article 9(2), even as a fall-back position, to the effect that the
extension of the ambit of section 548 to independent schools is "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". That contrasts with the position before the judge, where
the Secretary of State did contend that section 548 was justified under
article 9(2), albeit as a mere submission and without any evidence and only as
a final and fall-back submission. The judge rejected that submission in the
following terms:
"Finally, Mr. Keith for the Secretary of State contended that
even if I were to find an infringement of Article 9, I should nonetheless
find the provision justified under Article 9(2). Had I found against the
Secretary of State under Article 9(1), I would have been unwilling to take
that step. It may be that in exceptional cases the potential harm resulting
from the manifestation of a belief will be so plain that it is obvious on
what grounds the state has banned it. However, that is not the case here. It
is not even as if all corporal punishment is being treated as unlawful, only
that practised in schools. I have no evidence that it was ever appreciated
that the banning of corporal punishment might conflict with the parents'
human rights. Moreover even if that were appreciated, I have no evidence
before me as to why it was felt justifiable to interfere with such rights.
Without such evidence, it is impossible to say whether the response was a
proportionate one. The court cannot find justification simply on the basis
of counsel's assertion as to possible grounds which a state might be able to
rely upon to justify the provisions in question."
- There has been no respondent's notice nor any
attempt on this appeal to resurrect that submission. On the contrary this
court was informed by Mr Hugo Keith, who appears on behalf of the Secretary of
State, that the decision not to invoke article 9(2) on appeal had been a
considered and deliberate one. Thus there is no suggestion that the statutory
provision complained of is necessary in a democratic society to protect the
rights and freedoms of children. Article 2 of the First Protocol has no
similar express limitation on the rights granted by it, but, to the extent
that there may be implicit in it any similar limitation in favour of the
necessity to protect the rights and freedoms of children, or any inherent
qualification to the effect that only religious or philosophical convictions
which are worthy of respect in a democratic society or are compatible with
human dignity qualify as convictions within the meaning of the article, no
real case to the effect that the beliefs of the appellants would be excluded
on that ground has been made on behalf of the Secretary of State. Nor has any
argument been advanced that there is no failure to "respect" parents' rights
under that article because the State's interference with any such right is not
disproportionate.
- The furthest that Mr Keith has gone is to remind
the court by reference to decisions of the European Court on article 3, such
as Costello-Roberts v. United Kingdom (see at para 100 above) and
Tyrer v. United Kingdom (1978) 2 EHRR 1 (see its para 33), that that
article is designed to protect a person's dignity and physical integrity.
Nevertheless, the fact remains that the ECtHR has never ruled that all
corporal punishment of children, or even all corporal punishment in schools,
falls within the prohibition of article 3 as being "degrading"; nor that any
other right of children protected by the Convention has been violated by
corporal punishment which does not infringe article 3. Nor did the Secretary
of State make any submission to the contrary.
- It follows that the real battle-ground 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. That, as
I say, has not been the argument in this case.
- Instead, the argument has been a much narrower
and more formal but in its way equally important argument about the nature of
religious belief itself. The Secretary of State has argued, to put his central
thesis as succinctly as I can, that neither article 9 nor article 2 of the
First Protocol is engaged at all, because the appellants' belief, genuine as
it is accepted to be, and sincerely based as it is also accepted to be on what
is seen by the appellants as their Christian religious belief, nevertheless is
not a matter of religion or religious belief at all, nor a religious
conviction, at any rate for the purposes of the Convention. Nor is the
practice of a system of corporal punishment according to such a belief a
manifestation of such a belief, as distinct from something motivated by such a
belief.
- I have called this an important argument, and so
I think it is, for it proceeds, if correct, by denying to such a belief any of
the protections which the Convention grants to religious conscience and
practice. Conscience is not a matter of counting heads. Minority beliefs need
protection. Of course, a claim to hold a religious belief does not make it so.
But how is one to recognise a belief of a religious nature which on the one
hand is or on the other hand is not a belief or religious conviction for the
purpose of the Convention? One person's creed is another's anathema. Moreover,
a person's religion or religious belief, perhaps more than any other kind of
belief, may inform and affect his or her whole life. Thought, conscience,
religion, and the transference and demonstration of values are all inseparably
entwined with action. The Convention recognises the value of freedom of
thought, conscience and religion and the right to transfer such values to a
new generation. There are also the dangers I have spoken of above.
- Speaking for myself, I am unhappy that the
argument has taken this narrow, however important, path. It has deprived the
court of the richness and assistance of authorities from other jurisdictions
which have had to grapple with the wider argument. As an example of such
authorities I would merely mention two, albeit they deal with different (but
possibly relevant) constitutional texts: Employment Division, Department of
Human Resources of Oregon v. Smith 494 US 872 (1990) and Christian
Education South Africa v. Minister of Education [2001] 1 LRC 441, 9 BHRC
53.
The judgment below
- The judge proceeded (at para 39 of his judgment)
by asking himself two principal questions, as follows:
"First, is the desire to have one's child potentially subject to
corporal punishment properly described as a religious belief (Article 9) or
conviction (Article 2 of the First Protocol)? Second, if not, is it in any
event the manifestation of a belief or a practice which is in conformity
with [a religious] conviction and which has been unlawfully interfered
with?"
- The judge's approach therefore was to ask
himself questions which spanned the separate articles of the Convention under
consideration and to some extent conflated their language. There is
considerable value in that approach, for as the ECtHR noted in both
Kjeldsen, Busk Madsen and Pedersen v. Denmark 1 EHRR 711 (at para 52)
and Valsamis v. Greece 24 EHRR 397 (at para 25):
"the two sentences of Article 2 [of Protocol No. 1] must be read
not only in the light of each other but also, in particular, of Articles 8,
9 and 10 of the Convention…".
- The judge's answers to his two questions were as
follows. As to the first, he took Campbell and Cosans v. United Kingdom
4 EHRR 293 as his principal authority. He referred to the ECtHR's view (at
para 36) that "beliefs" (in the French text convictions) in article 9
and "convictions" in article 2 of the First Protocol were akin in meaning, and
could be contrasted with mere "opinions" and "ideas", concepts found in
article 10. He then cited and adopted the ECtHR's understanding of
"philosophical convictions" as denoting –
"such convictions as are worthy of respect in a 'democratic
society' and are not incompatible with human
dignity"(ibid).
- In an extended passage cited in Buxton LJ's
judgment at para 56 above the judge then appears to have argued as follows. He
contrasted the "philosophical conviction" in issue and accepted as such in
Campbell and Cosans, ie the conviction against the use of
corporal punishment in schools, with the candidate in issue in the present
case, ie the alleged belief in favour of corporal punishment in
schools, and remarked that because the latter involves an intentional assault
it requires a stronger case to justify it. At that stage the reader is
prepared for an analysis of whether such a belief is worthy of respect in a
democratic society and is compatible with human dignity. Such an analysis,
however, does not occur. On the contrary, the judge states that a belief that
corporal punishment should be imposed cannot "properly be…described" as a
philosophical or religious conviction and adds that "This has got nothing to
do with the genuineness of the belief or its intrinsic merits" (my
emphasis) but rather with its "nature or character". Thus the belief's
intrinsic merits are not in question. The reason why the belief cannot be
treated as a philosophical conviction is then given: it is because –
"Nobody suggests that the corporal punishment should
automatically be applied to all children as a matter of principle. For some
children it may never be necessary. It is envisaged that it will be needed
only for rare cases of relatively serious indiscipline. The parents wish it
to be administered in such circumstances because they consider it to be a
more efficacious method of securing appropriate discipline. I do not think
that it is appropriate to describe a belief that one measure is more
effective than another as a philosophical or religious conviction even if
the reason for holding that belief is that it is supported by a religious
text."
- In giving that reason I am concerned that the
judge may have mischaracterised the appellants' belief and, critically,
emptied it of the religious content that they espouse. As I read their
evidence, they are not motivated by a merely utilitarian view as to the
efficacy of corporal punishment, but by a religious view that regards the
proper exercise and bearing of punishment, including corporal punishment, as
part of the training for and ultimately living of a godly life. Like the
judge, I am not dealing with the merits of that position. But I believe that
the appellants have no hope of having that position taken seriously for the
purposes of the Convention if it is represented simply as a view as to "a more
efficacious method of securing appropriate discipline".
- At the end of the passage cited above the judge
reverts to acknowledging the religious basis for the appellants' belief,
although he has already characterised that belief in the way considered above
and does not recognise the appellants' basis for it other than in terms of the
fact that the belief is "supported by a religious text". The belief therefore
remains a utilitarian belief, albeit one supported by a religious text. He
then seems to me to consider a new aspect of the argument, which is to ask
what status to accord to such religious texts. He reasons:
"It is not one of the articles of faith. It may be accurate to
say that someone has a religious conviction that everything in the Bible is
true, but it would surely be odd to describe, say, a belief in angels as a
religious conviction or as itself constituting an article of religious
faith. It is a belief which is in accordance with the religious faith, but
it does not embody or define the belief or conviction itself."
- The question, of course, is not what the status
of a belief in angels is: but the argument proceeds by distinguishing between
the belief in issue, which is accorded a distinct and subsidiary status, and
on the other hand an "article of faith" or belief which embodies or defines
religious faith (or embodies or defines a belief or conviction of religious
faith?), which is accorded a higher status. I am concerned that a secular
court is ill equipped for such distinctions. I am concerned that it is not
only ill equipped, but that it lacks in this case the conventional means by
which it would normally proceed to make such distinctions, which is evidence.
I am in any event uneasy about the efficacy of such evidence: one of the
problems of religion is the diversity of belief even within the umbrella of a
single faith. I am also sceptical that such distinctions would give correct
answers about beliefs arising out of religions other than Christianity. The
practice of Judaism, for instance may be said to depend in large part not
merely on faith but on a law based or developed obligation to obey God's
commands. Thus I do not think that circumcision, or the dietary laws, could be
correctly (or other than metaphorically) referred to as an "article of faith"
of Judaism or Islam, although they are regarded as divine commandments. It is
hard to conceive, however, that Jews or Muslims could be prevented from
manifesting their religion or belief in such respects without an engagement of
Convention rights.
- The judge concludes (in his para 46) by
reverting to the belief in issue. He accepts that it is a "belief"
("genuinely and strongly held"), but not that it is a religious conviction. He
repeats that it is a belief as to the "efficacy" of corporal punishment. He
then says:
"Corporal punishment is not being invoked for its own sake but
in order to help secure the religious convictions that underpin the
Christian convictions of these families. Accordingly I do not accept that
the belief in the desirability of corporal punishment, even though it is
derived from the Christian convictions held by these parents, can properly
be defined as a religious conviction in its own right."
- In that first sentence the judge comes, for the
first time in this passage, closest to expressing the appellants' case, but it
seems to come too late to make an impression on the argument. It also appears
to be crucial that corporal punishment is not invoked "for its own sake". The
same might possibly be said about keeping the sabbath, save that that is also
made the subject of an express biblical commandment, in this case one of the
Ten Commandments.
- I would pay genuine respect to the reasoning of
the judge, approved as it is in its essence if not in all its aspects by
Buxton LJ; but in my judgment it proceeds from a mischaracterisation of the
appellants' case. On that basis the judge is unwilling to accord to the
appellants' genuine and strongly held belief, founded in their Christian
faith, the status of a religious conviction. It is not the intrinsic merits of
their belief, but its nature or character which for him determine that
conclusion.
- In the circumstances I am concerned that the
judge may have erred in his answer to his first question. On behalf of the
appellants Mr Paul Diamond submitted that to proceed down the path of
speculating on the merits or nature of the appellants' Christian faith was a
false and dangerous turning. I do not think that the judge did, in the end,
consider the merits of the appellants' belief, but he did seek to
evaluate its nature and character. This seems to me to raise most difficult
and troublesome questions. How is a court to evaluate a claim to a religious
basis for someone's belief? Not all faiths follow familiar forms, and even
within a single umbrella faith there are minority views, some of an extreme
fundamentalist kind. And is it true that merits play no role in the
evaluation? The judge seems to have trembled on the brink of making that
evaluation, at any rate in contrasting the belief in question in this case
with its counterpart in question in Campbell and Cosans. What is to
happen if a religious belief or conviction flies in the face of what is worthy
of respect in a democratic society or is incompatible with human dignity? I
shall revert to such questions below.
- The judge's second question (see para 117 above)
asked whether the exercise of corporal punishment in schools was a
manifestation of a belief or conviction. As posed, the question assumed that
the answer to the first question was that the belief in corporal punishment
was not a religious belief or conviction within the meaning of article
9 or article 2 of the First Protocol. I confess to finding the form of this
question puzzling. It is not clear to me how it could be answered positively
where the first question had been answered in the negative, which was exactly
the answer assumed in the second question. It may simply be that the judge's
"if not" is an error for "if so". In any event the judge reasoned as follows
(at paras 53/4 of his judgment), basing himself on Valsamis v. Greece:
"In my view the refusal to permit the sanction of corporal
punishment cannot fairly be described as an act of indoctrination that fails
to respect the parents' religious and philosophical convictions. The
children are in no sense being indoctrinated; their beliefs remain
untarnished…In my view this case shows that not every interference to which
religious objection can be made will amount to an infringement of the
Convention..."
- It seems to me that there the judge is answering
a different question, one related not so much to article 9's concept of the
manifestation of a person's religion or belief as to article 2's concept of
the State's need to respect the right of parents in the education of their
children.
- There still remains the separate question,
highlighted in the judge's second question, whether the exercise of corporal
punishment is a manifestation of religion or belief. The judge reaches
that question in para 54 of his judgment by reference to Arrowsmith v.
United Kingdom 3 EHRR 218 and the distinction between an action motivated
by belief as distinct from an action manifesting belief. Thus the judge
reasoned:
"Similarly here: sending one's child to an environment in which
corporal punishment is permitted for disciplinary misdemeanours is an action
which is motivated by the belief but it is not in my judgment a
manifestation of the belief itself. It is not the outward manifestation in
observance or practice of the fundamental tenets of the religion such as
will occur during religious services or even when seeking to convert others
to one's beliefs. It is an action which, put at its highest, is designed to
reinforce a respect for the religious values involved rather than being a
manifestation of those values."
It can be observed that buried in that reasoning is a continuing
distinction between "the fundamental tenets of the religion" and other beliefs
or values. In other words, if "if not" is to be altered to "if so" in the
judge's question, he has not remained faithful to his hypothesis.
The authorities
- I think it is helpful to set out in their
chronological order the six leading Strasbourg authorities originally cited to
the court, even though both articles in issue are not equally under
consideration in each of them.
- The earliest, decided in 1976, is Kjeldsen,
Busk Madsen and Pedersen v. Denmark 1 EHRR 711. The applicants objected to
a Danish law which made sex education in schools compulsory. The issue
therefore was as to the positive content of the educational curriculum
required by the State. On such an issue the ECtHR's judgment naturally
concentrated on article 2 of the First Protocol. The essence of the Court's
reasoning is contained in the following passages from paras 50 and 53 of its
judgment:
"Furthermore, the second sentence of Article 2 must be read
together with the first which enshrines the right of everyone to education.
It is on to this fundamental right that is grafted the right of parents to
respect for their religious and philosophical convictions…
"The second sentence of Article 2 aims in short at safeguarding
the possibility of pluralism in education, which possibility is essential
for the preservation of the 'democratic society' as conceived by the
Convention. In view of the power of the modern State, it is above all
through State teaching that this aim must be realised…
"It follows…that the setting and planning of the curriculum fall
in principle within the competence of the Contracting States. This mainly
involves questions of expediency on which it is not for the Court to rule
and whose solution may legitimately vary according to the country and the
era. In particular, the second sentence of Article 2 of the Protocol does
not prevent States from imparting through teaching or education information
or knowledge of a directly or indirectly religious or philosophical kind. It
does not even permit parents to object to the integration of such teaching
or education in the school curriculum, for otherwise all institutionalised
teaching would run the risk of proving impracticable…
"The second sentence of Article 2 implies on the other hand that
the State, in fulfilling the functions assumed by it in regard to education
and teaching, must take care that information or knowledge included in the
curriculum is conveyed in an objective, critical and pluralistic manner. The
State is forbidden to pursue an aim of indoctrination that might be
considered as not respecting parents' religious and philosophical
convictions. That is the limit that must not be exceeded."
- As for article 9, the ECtHR merely said that it
found no breach, adding that it had taken account of it in interpreting
article 2 of the First Protocol.
- Arrowsmith v. United Kingdom 3 EHRR 218
followed in 1978. This is not a judgment of the ECtHR but a report of the
Commission. Ms Arrowsmith was a pacifist who had distributed leaflets to
British soldiers at an army camp in England calling on them to decline duty in
Northern Ireland. In her application she complained that her conviction under
the Incitement to Disaffection Act 1934 was a violation of article 9, since it
interfered with her right to manifest her pacifist belief in practice. The
Commission disagreed. Critically, it found (para 75) that
"the leaflets did not express pacifist views. The Commission
considers, therefore, that the applicant, by distributing the leaflets, did
not manifest her belief in the sense of Article 9(1)."
- It was in this context that the Commission had
earlier stated the distinction between manifestation of a belief in practice
and conduct "which is motivated or influenced by a religion or a belief" (at
para 71), adding
"It is true that public declarations proclaiming generally the
idea of pacifism and urging the acceptance of a commitment to non-violence
may be considered as a normal and recognised manifestation of pacifist
belief. However, when actions of individuals do not actually express the
belief concerned they cannot be considered to be as such protected by
Article 9(1), even when they are motivated or influenced by it."
This distinction has been approved in other cases, for instance by the
ECtHR itself in Kalaç v Turkey.
- Campbell and Cosans v. United Kingdom 4 EHRR 293 was decided by the ECtHR in 1982. The applicants in this case were
the parents of two boys at state schools. They complained that the system of
corporal punishment at their sons' schools violated article 3 and article 2 of
the First Protocol. Their complaint was upheld under article 2 only. In that
respect their case was that they had a philosophical conviction against the
use of corporal punishment. The essence of the Court's reasoning is contained
in the headnote, with references to paragraphs in the judgment, as follows:
"(a) Although the use of corporal punishment in schools may be a
matter of internal administration or merely ancillary to education and
training, it is an integral part of the process whereby a school seeks to
develop and mould the character and mental powers of its pupils and it
cannot be said to fall outside the scope of Article 2 of Protocol No 1
[33].
"(b) Although the power to use corporal punishment is vested in
teachers by the common law and is not delegated by the State, discipline is
an integral part of any educational system and the functions assumed by the
State in formulating general policy in State schools must be taken to extend
to questions of discipline in general [34].
"(c) The obligation to respect religions [sic] and philosophical
convictions under Article 2 of Protocol No 1 is not confined to the content
of educational instruction or the mode of conveying information and
knowledge but includes the organisation and financing of public education,
the supervision of the educational system in question and questions of
discipline [35].
"(d) The expression 'philosophical convictions' in the present
context denotes such convictions as are worthy of respect in a democratic
society and are not incompatible with human dignity. The applicants' views
on corporal punishment related to a weighty and substantial aspect of human
life and behaviour and satisfied these criteria [36].
"(e) The duty to respect parental convictions cannot be
overridden by the alleged necessity of striking a balance between the
conflicting views of parents who favour corporal punishment and those
opposed to it [37]."
- That case was not concerned with religious
convictions, but the ECtHR did opine on the meaning of "convictions", to the
effect that the expression "denotes views that attain a certain level of
cogency, seriousness, cohesion and importance" (at para 36). There was no
submission in the present case that the appellants' belief is not a
"conviction" in that sense, and indeed the ECtHR's opinion as to that
expression's content was not cited by the judge below. The judge found,
however, and the Secretary of State's argument in this court remains that the
appellants' belief is not a religious conviction.
- It is difficult to read the reasoning of the
ECtHR in Campbell and Cosans, as encapsulated in that headnote, without
wondering why it does not apply with equal force to the appellants' conviction
in the present case. The ECtHR accepted (see para 33) that
"the education of children is the whole process whereby, in any
society, adults endeavour to transmit their beliefs, culture and other
values to the young…"
and that discipline is an integral part of that process. If that is so
within society as a whole, I cannot see why that does not apply equally to
parents who believe deeply in their religious faith and presumably find in it
guidance (to use a rather neutral expression) not merely for part but for all
of their life, in thought, word, and deed. The ECtHR did not sideline
convictions relating to discipline as a merely ancillary matter of
administration, or of simple ways and means, a matter of mere efficacy, but
regarded it as part of the integral process of the transmission of values to a
new generation.
- Seven Individuals v. Sweden (Application
No 8811/79) is a 1982 decision of the Commission. The applicants were members
of a Protestant free church congregation who complained about a section in
Sweden's "Code of Parenthood" which stated that "The child shall not be
subjected to corporal punishment or any other form of humiliating treatment".
They justified their belief in corporal punishment by the use of biblical
texts. The Commission decided that there was no breach of articles 8 or 9 on
the ground that there was no interference by the State in the rights
guaranteed by those articles. The Commission's reasoning in this respect was
expounded under the consideration of article 8 and there was no separate
consideration of the wording of article 9. The essence of the reasoning
appears to be that the Code contained no sanction; by prohibiting and thus
discouraging any corporal punishment it was merely designed to prevent
excessive punishment which would amount to a criminal assault; and
there was no evidence that the Code's prohibition of even light corporal
rebukes had led to any change in the criminal law or to any prosecutions for
such light rebukes or indeed any effect at all on the applicants.
- The Commission also decided that there was no
violation under article 2 of the First Protocol by reason of the Code's
incorporation into the Swedish school curriculum. The parents' complaint was
that this amounted to indoctrination. The Commission, however, disagreed and
reasoned as follows:
"In the present case the Commission has found that no
interference with either Article 8 or 9 arises and concludes that the
applicants, who have not averted to more than policy statements of a general
character, which could in no sense be described as an attempt by the
respondent Government to implement a policy of indoctrination in Swedish
schools, have failed to show that their right to respect for their religious
convictions protected by Article 2, First Protocol has been violated by any
concrete provision or practice."
- There was, however, no decision to the effect
that article 2 was not even engaged because there was no question of a
religious conviction being in question. On the contrary, the Commission
appears to have rejected the Swedish Government's submission that –
"the second sentence must be given a reasonable interpretation
and may not be read to protect extraordinary or unusual elements of
religious or philosophical doctrine which may conflict with the State's
duties to protect children from harm"
by reference to a previous Commission dictum that –
"it is precisely in their capacity as individual parents that
the applicants are entitled to claim the right to respect for their
philosophical convictions and this irrespective of whether their claim may
be in conflict with the standards generally accepted by other parents in
respect of discipline".
The Commission did not refer to Campbell and Cosans which had been
decided three months earlier.
- Although potentially Seven Individuals
held a certain promise of revealing insights into the issue in the present
case, I do not think that it is ultimately of much assistance, for the special
facts relating to the Code's lack of sanction and its lack of effect on the
criminal law became the critical focus of the reasoning. If anything, however,
on the ground which has carried weight with Elias J, the Commission's approach
provides some support for the appellants.
- Kokkinakis v. Greece 17 EHRR 397 is a
1993 decision of the ECtHR on article 9. The applicant there was a Jehovah's
witness who had been convicted under a Greek law against proselytism. The
Court held that there had been a breach of article 9 and that for the purposes
of article 9(2) the Greek law went further than was necessary in a democratic
society. Under the heading of "General Principles" the ECtHR had this to say
about the importance and width of article 9 (I have already cited at para 93
above from the beginning of this passage):
"31. As enshrined in Article 9, freedom of thought, conscience
and religion is one of the foundations of a 'democratic society' within the
meaning of the Convention. It is, in its religious dimension, one of the
most vital elements that go to make up the identity of believers and of
their conception of life, but it is also a precious asset for atheists,
agnostics, sceptics and the unconcerned. The pluralism indissociable from a
democratic society, which has been dearly won over the centuries, depends on
it.
While religious freedom is primarily a matter of individual
conscience, it also implies, inter alia, freedom to 'manifest [one's]
religion'. Bearing witness in words and deeds is bound up with the existence
of religious convictions.
According to Article 9, freedom to manifest one's religion is
not only exercisable in community with others, 'in public' and within the
circle of those whose faith one shares, but can also be asserted 'alone' and
'in private'…
"33. The fundamental nature of the rights guaranteed in Article
9(1) is also reflected in the wording of the paragraph providing for
limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11,
which cover all the rights mentioned in the first paragraphs of those
Articles, that of Article 9 refers only to 'freedom to manifest one's
religion or belief.' In doing so, it recognises that in democratic
societies, in which several religions coexist within one and the same
population, it may be necessary to place restrictions on this freedom in
order to reconcile the interests of the various groups and ensure that
everyone's beliefs are respected."
- For the purposes of its consideration of
Greece's defence under article 9(2) the ECtHR was prepared to consider
evidence relating to what it called the distinction between "true evangelism"
and "improper proselytism" (see para 48). In this connection it derived
assistance from a 1956 report drawn up under the auspices of the World Council
of Churches. If the Greek law had gone no further than punishing improper
proselytism, then there would have been no breach of article 9.
- The most recent case in this series is
Valsamis v. Greece 24 EHRR 292, another decision of the ECtHR, given in
1996, which the judge found of assistance. There the applicants were three
Jehovah's witnesses, parents and their daughter. The daughter had suffered a
one day suspension from school because she had refused to take part in a
school parade on the occasion of Greece's National Day. The applicants
complained of breaches of article 9 and of article 2 of the First Protocol in
that the daughter's refusal was premised on religious (pacifist) objections to
participating in a parade on a day which commemorated the outbreak of war
between Greece and fascist Italy. The ECtHR reviewed principles which it had
stated in its decisions referred to above but did not consider it necessary to
add to them. It appears to have taken for granted that the applicants'
religious pacifist convictions were entitled to respect but found on the facts
that nothing had occurred which could have offended them, for –
"Such commemorations of national events serve, in their way,
both pacifist objectives and the public interest" (at para 31).
- The ECtHR added that there was nothing to stop
the parents guiding their daughter in line with their own convictions.
Therefore there was no breach of article 2 of the First Protocol. As for
article 9, the argument was that it guaranteed the daughter's negative freedom
not to manifest by her support convictions contrary to her own. The Court
rejected the argument again on the facts, saying (at para 37):
"It has already held, in paragraphs 31-33 above, that the
obligation to take part in the school parade was not such as to offend her
parents' religious convictions. The impugned measure therefore did not
amount to an interference with her right to freedom of religion
either."
- In my judgment, Valsamis is a decision on
the facts and adds nothing to the principles of the earlier cases. No question
arose as to the meaning of religious convictions, beliefs, or the
manifestation of religion or belief.
- The last authority I should mention is one not
cited to the court, but to which Buxton LJ has referred at paras 29 and 34
above, namely X v. United Kingdom 6 EHRR 558, a decision of the
Commission given in 1984. The applicant, a pacifist, there complained, in
reliance on article 9, that there was no procedure by which she could prevent
any portion of her income tax being used for military purposes, and that she
was being prevented from manifesting her belief that she should oppose
recourse to force in the settlement of disputes. The Commission, in its brief
reasoning, held the complaint to be manifestly ill-founded. Its principal
arguments (eg that the power to collect taxes was expressly recognised by
article 1 of the First Protocol, that the obligation to pay taxes is a general
one with no specific conscientious implications in itself, and that its
neutrality is illustrated by the fact that no tax payer can determine the
purpose for which his or her contributions are applied) were directed to the
conclusion that the obligation to pay involved no impingement on the freedoms
generated by article 9. However, the Commission also referred to its decision
in Arrowsmith v UK, and stated:
"Art. 9 primarily protects the sphere of personal beliefs and
religious creeds, ie the area which is sometimes called the forum
internum. In addition, it protects acts which are intimately linked to
these attitudes, such as acts of worship or devotion which are aspects of
the practice of a religion or belief in a generally recognised
form."
I shall refer to this dictum below, because Buxton LJ has relied on it to
suggest that the area of manifestation of belief protected by article 9(1) is
a narrow or limited one and in any event sufficiently restricted to exclude
the appellants from reliance on it in this case.
Discussion: the appellants' beliefs
- Although the two articles under consideration
have to be considered together, it is typical in Strasbourg jurisprudence to
deal in turn with a complaint raised in respect of each article invoked. I
shall seek to do the same, beginning, as in Valsamis, with article 2 of
the First Protocol which, after all, is specifically concerned with the need
for States to respect the right of parents to ensure education in conformity
with their own religious and philosophical convictions. Another advantage of
beginning with article 2 is that it enables me to start by considering whether
the appellants can rely on a religious conviction, before going on to consider
the question of manifestation of belief for the purposes of article 9.
- The judge did not accept that any religious
conviction was involved in this case, but I regret that I am unable to agree
with his reasoning, which I have considered in some detail above. It seems to
me that the difficulties I have with that reasoning are underlined by a
consideration of the Strasbourg jurisprudence. A "conviction" denotes views
that attain a certain level of cogency, seriousness, cohesion and importance
(Campbell and Cosans at para 36), but there has been no submission nor
any finding by the judge that the appellants' views in favour of a system of
punishment in schools which includes corporal punishment do not qualify as a
conviction for these purposes. One may profoundly disagree with the
appellants' views, but it seems hard to say that they are not cogent, serious,
cohesive and important, and there has been no attempt to submit that they are
not. I would agree that a person's mere claim to have a conviction, or
a religious conviction, does not make it a conviction or religious conviction.
Nevertheless, there is no evidence before the court to dispute their claim to
found their beliefs in orthodox Christianity. That view of what orthodox
Christianity entails may of course be a minority view, but there is no
evidence that it is not a legitimate, albeit minority, view. The Secretary of
State has not sought to place any evidence before the court, similar to the
World Council of Churches report in evidence in Kokkinakis (at para
48), to the effect that the appellants' view of the use of corporal punishment
in the education of children is an illegitimate perversion of Christian
belief. For these purposes it is necessary to accept for the purposes of the
argument the administration of corporal punishment as described by the
appellants and not disputed by the Secretary of State: that is to say,
corporal punishment only where rarely necessary and appropriate, only to a
mild degree, and exercised as part of a responsible and indeed loving approach
to the education of children in their duties to God and man.
- In Campbell and Cosans the ECtHR said
(ibid) that for a conviction to qualify as a "philosophical" conviction
it had to be worthy of respect in a democratic society and not be incompatible
with human dignity. It is not clear whether the same requirement is needed as
a test of a "religious" conviction. It may not be, for at any rate in the case
of established religions, it should be possible for the most part to speak
with some confidence of whether something is a religious conviction or not:
whereas philosophical secular convictions may be of a more personal and
idiosyncratic nature. At any rate, no case has been cited prior to this case
in which a claim to a religious conviction has been rejected. Of course,
religion is a controversial subject and there would be many who would argue
that undoubted religious convictions are not worthy of respect or are not
compatible with human dignity. It is in part to guard against such controversy
that the Convention guarantees religious freedom. The Commission's decision in
Seven Individuals v. Sweden, as far as it goes, would appear to be
unsympathetic to the idea that extraordinary or unusual elements of religious
doctrine or convictions which "conflict with the standards generally accepted
by other parents in respect of discipline" would be convictions unworthy of
protection under article 2. Nevertheless, there is of course a danger in
opening up the protection of the Convention to a wide range of practices that
a democracy may properly wish to control. Let me therefore assume that the
Campbell and Cosans test must apply to religious convictions as well as
philosophical convictions and is not merely a test which enters at the article
9(2) stage of justification. Even so, and bearing in mind that it takes more
to justify the imposition of violence than the prohibition of violence, I
cannot find in any Strasbourg jurisprudence any majority support, or in the
judge's judgment below any finding, that the regime of corporal punishment in
evidence in this case is not worthy of respect in a democratic society or is
incompatible with human dignity.
- To revert to Campbell and Cosans: in that
case it was held by the ECtHR that a belief against the use of corporal
punishment in schools qualified as a philosophical conviction. For reasons
already indicated in the course of commenting on that decision, and in the
light of the discussion immediately above, and on the evidence in this case, I
cannot see why the belief in favour of the use of corporal punishment in
schools as here described does not equally well qualify as a philosophical
conviction, and, indeed, because it is rooted in religious belief, as a
religious conviction. With genuine respect for the views of Elias J and Buxton
LJ, I am not satisfied that it is possible to avoid that conclusion by
characterising the belief in question as merely one as to efficacy. I do not
believe that that is an accurate characterisation on the evidence; and I am
concerned that such a downplaying of the appellants' belief, in a way that I
am confident that they would not recognise, would be a recipe in other cases
for emasculating the content of the rights protected by article 2, and, for
there is a connection with article 9 although the words there are "religion or
belief", the content of the rights protected by article 9 as well. The ECtHR
itself recognised in Campbell and Cosans that discipline was an
integral part of what it described as "the whole process" of education whereby
adults endeavour to transmit their beliefs and values to the young. Nor do I
think it ultimately helpful to describe the appellants' belief as one inspired
by but not part of religious faith. If this is another way of saying that
theirs is a belief merely as to efficacy, then the argument has not advanced.
If this is a way of saying that it is not "an article of faith", I am dubious
for reasons already given about the distinction sought to be drawn at any rate
in the context of the Convention rights, and, in any event, I lack the
evidence or inherent knowledge to make the distinction sought. It would be odd
if it was harder to establish a belief as a religious conviction for the
purposes of article 2, because it was not an article of faith, than to
establish a belief as a philosophical conviction.
- I should at this point respectfully refer to a
new and powerful argument developed by Buxton LJ principally at paragraphs 21
to 24 and 62 to 68 above, which I think goes somewhat beyond the judge's
analysis. Buxton LJ there reasons that the appellants' evidence of religious
belief is itself wanting. In the first passage he leaves the point open,
describing the nature and basis of the appellants' belief and its connexion
with the regime which they espouse as elusive. In the second passage he
proceeds from scepticism to his conclusion that the appellants' lack any
religious belief or conviction within the protection of the Convention.
- One strand in his scepticism and ultimate
rejection of the appellants' claim is that there is what he describes as a gap
between their actual practice and the more far-reaching imperatives of the
scriptural authority by which those practices are justified. However, I do not
share his concern in this respect. It is of the nature of religious belief
that scriptural texts become the subject-matter for interpretation and
development down the ages. It cannot be right in principle that the Convention
should protect only the most fundamentalist or otherwise literal
interpretation or practice of religious texts.
- Another strand, and indeed the counterpoint to
the first, is his treatment of the general Christian message of love and
forgiveness as a possible explanation of the gap between text and practice
which he identifies. He says that such a message is too generalised and
undefined a position to count as a conviction or belief for the purposes of
the Convention. I would regret to think that was so, but in any event I do not
agree. For one thing, the fact that a sterner text is softened by the
application of Christian principle does not make the adherence to a text thus
reinterpreted any the less the matter of religious belief. For another thing,
I would not accept that the general doctrine of Christian love and forgiveness
is anything but cogent, serious, coherent and important. If need be, that
doctrine could be exemplified by specific texts: the fact that the doctrine
can be generalised is not, after all, a weakness but evidence of the strength
of the overall message, the power of which is recognised throughout the world.
- I revert, therefore, to my earlier concerns. In
my judgment the insistence of the Secretary of State in arguing this appeal on
the narrow ground of whether the appellants are even motivated by a
religious belief or conviction (the additional question of whether they
manifest such belief or conviction is discussed below) was, on the
unopposed evidence of this case to take a wrong turning. No decision of the
Commission or ECtHR cited to this court has proceeded or been based on such an
analysis. The attempt to perform it demonstrates, to my mind, the difficulties
and dangers of such an approach. I do not mean to say that such an approach
could never be taken, for I repeat that a mere claim to a relevant belief does
not make it so: but the difficulties of such an approach have not been
surmounted here.
- In sum, I find nothing in the Strasbourg
jurisprudence reviewed above to cause me to reject, and much to support, a
conclusion that the appellants' belief is a religious conviction for the
purposes of article 2 of the First Protocol. It follows that for similar
reasons I am persuaded that the appellants' belief qualifies as a belief for
the purposes of article 9.
Article 9 and the manifestation of belief
- Article 9 protects the right "either alone or in
community with others and in public or private, to manifest his religion or
belief, in worship, teaching, practice or observance". The question then
arises whether the appellants' freedom in this respect is being interfered
with. I put aside for later consideration the "non-interference" point itself,
and assume at this stage of the argument that the appellants, in the case of
the parents, would be prevented from giving effect to their Christian belief
in the need to place their children in an educational environment where
corporal punishment is practised. In the case of the teachers, the assumption
is that they would be prevented from giving effect to their Christian belief
in the need to provide to Christian families an educational system where
corporal punishment was available in appropriate cases.
- The question then is whether the carrying out,
where appropriate, of that which is prevented would have been a manifestation
of those beliefs. That is the paradigm case of alleged interference. It does
not seem to me to matter that for much or most of the time, in the absence of
an appropriate case for punishment, the appellants' world continues in the
same way as it would have done even had section 548 not been amended to
include the challenged prohibition. In any event, the appellants' world does
not continue in the same way, for it is impossible to promulgate and seek to
uphold a scheme of discipline which cannot lawfully be put into practice.
- Two separate but intertwined issues arise at
this stage. The first relates to the submission expressly made by Mr Keith on
behalf of the Secretary of State and upheld by the judge, namely that the
exercise and application of the schools' schemes for corporal punishment
cannot be regarded as a proper manifestation of the appellants' belief, that
it falls on the wrong side of the mere motivation/manifestation dichotomy of
Arrowsmith. The second relates to the concern most clearly expressed by
Buxton LJ that in any event article 9(1)'s limitation to "worship, teaching,
practice and observance" is a deliberately narrow one that shuts out the
appellants on the facts of this case. Although the two issues bear on one
another, it is necessary to some extent to give separate consideration to
each.
- I will take the second issue first, because
"manifest" is the general expression and it is clearly limited by the
expression "in worship, teaching, practice and observance". Buxton LJ is of
the view that this limitation is intended to confine the freedom narrowly (see
paras 29/31 and 34/35 above). Thus he stresses the Commission's dictum in X
v. United Kingdom which mentions "acts of worship and devotion" and argues
that the protection is rooted in the concept of religious teaching and
worship. To my mind, the reference in X v. United Kingdom to worship
and devotion is merely intended as examples by way of a gloss on the
Convention's language. "Devotion", a synonym of worship, is in any event not
to be found in article 9(1). When the ECtHR refers in Kalaç and
Jewish Liturgical Association to this part of article 9(1), it more
correctly cites the full language of "worship, teaching, practice and
observance", words which go well beyond mere acts of worship or devotion. In
any event none of these cases turned on any issue relating to the width of
those expressions. Moreover, since article 9(1) is concerned not merely with
religion, but with "religion or belief", it is difficult to see why that
quartet of words should be exclusively related to religion. Thus while I would
accept that the manifestation alleged must of course fall within the
Convention's language – and I will also assume that the connection must,
applying the words in X v. United Kingdom, be "intimately linked to
these attitudes" ie to "the sphere of personal beliefs and religious
creeds…the forum internum" (stressing the word "intimately") – I cannot
see why the appellants' beliefs in this case do not fall entirely within the
letter and the spirit of the words in question. I do not accept that the
Convention's language is intended to be narrow, only that the rationale of the
freedom to manifest must of course be related to its subject matter, namely to
"the sphere of personal beliefs and religious creeds" in the manner indicated
by the four expressions used.
- In this connection, I would refer to "teaching"
as the single most apposite of the four expressions, and, indeed, as directly
in point. Its place within article 9(1) demonstrates a close synergy with
article 2 of the First Protocol. (That is not to say, however, that practice
and observance may not be invoked as well.) The appellants are concerned with
the education of the children in Christian values and as a necessary part of
that teaching, so they believe, with a system of discipline (and I have in
mind the derivation of that word) which includes corporal punishment. The
possibility and circumscription of such punishment as well as its imposition,
if appropriate, are plainly intended, on the evidence before the court, to be
part of a teaching process.
- I therefore turn to the second issue. The
judge's solution of this issue hinges on his application of the distinction
drawn in Arrowsmith between manifestation of a belief and being merely
motivated by it. I would emphasise that "merely", because the fact that your
action is motivated by your belief does not mean at all that you are not
manifesting it. On the contrary, the probability is that you are. That is what
makes the facts of Arrowsmith important. The facts as found were that
her leaflets "did not express pacifist views…therefore…the applicant, by
distributing the leaflets, did not manifest her belief" (para 75). In the
present case, however, the appellants' evidence is that the existence and
exercise of corporal punishment is itself a demonstration of their belief.
Thus the very terms in which it is described in the Admission Statement (see
para 104 above) expresses the religious foundation of the policy of
corporal punishment. Buxton LJ at para 10 above explains further the
circumstances under which such punishment is administered, as does Arden LJ at
paras 220/225 and 227. This all takes place within the environment of a
Christian school dedicated to Christian education and for the purposes of
emphasising, in the rare if appropriate case where corporal punishment is
deemed necessary, what parents and school regard as a demonstration of loving
Christian correction. In such circumstances I find it hard to accept that the
stated policy and above all its application are not manifestations of the
appellants' belief.
- On the hypothesis, therefore, that the
appellants are at least motivated by a religious belief, there is in my
judgment little force in the argument that they are not manifesting it in the
present case. How can they exercise their freedom to manifest that
belief (other than merely theoretically, in word rather than in deed) save by
having a school system of corporal punishment? The deed does not have to
express the belief in the form of proclaiming it. A Muslim or Jew who adheres
to his religion's dietary laws does not proclaim it (unless perchance there is
any need for request or explanation); he does it. To all outward appearances
he is like any other person eating a meal: but he is manifesting his religious
belief and duty. The same may also be said of a negative act, such as a fast.
Although, as Buxton LJ has remarked, the word "manifest" is a somewhat strange
word, it clearly does not involve making something clear to others, or no one
could manifest his belief "in…private". It is, rather, making the distinction
between the forum internum and the external world in which a person
acts out his belief. As Arden LJ has pointed out, the fact that a
manifestation of belief cannot be regarded as such without the requisite
motivation does not mean that an act with the requisite motivation cannot
constitute the manifestation of belief. Or, as I have already remarked, the
Arrowsmith distinction is between manifestation and mere motivation. In
other words, motivation lies on both sides of the dichotomy: but manifestation
lies on one side only.
- No doubt it is possible, if it was proper to
have serious doubts about the wisdom of article 9, to rein in its effect by a
generous use of the manifestation/motivation dichotomy. Buxton LJ proceeds in
part on the basis that in Arrowsmith and again in X v UK the
Commission adopted an apparently "limited approach to article 9(1)" (see at
para 30 above). I prefer to view the Commission's decision in Arrowsmith
as being based on the facts of that case. As for X v UK, it is hard
to see how (at any rate in a democratic society) payment of taxes, which is in
any event an obligation recognised by article 1 of the First Protocol and
found by the Commission to be a general and neutral act or requirement,
involves any act of manifestation for or against any position. Even so, it is
not possible to generalise without fear of contradiction – as the case of
Darby v Sweden (1991) 13 EHRR 774 (see at para 191 below) demonstrates:
for there a small part of Swedish tax was ring-fenced for payment to finance
the Church of Sweden's religious activities, and the Commission held that
article 9(1) was engaged.
- In any event it is clear from Kokkinakis
(at paras 31 and 33) that the ECtHR does not share such a limited view of the
scope and importance of article 9. It is true that the powerful language of
the Court in Kokkinakis was deployed in a case concerned with
proselytism and that in such a case there is likely to be no issue, and in
fact there was none, that there was there a manifestation of belief. But that
gives all the more force to the ECtHR's resonant declaration of the general
principles involved in article 9, which I will not repeat but which in almost
every phrase emphasises the fundamental nature and precious value of the
pluralism protected by the article. It cannot be avoided or ignored that it is
the very importance of these principles, and of the need for their protection,
that at one and the same time sets up the conundrum of how to limit abuse of
such rights by those invoking them.
- In this connection Buxton LJ suggests that
Kokkinakis is to be explained or interpreted in the light of the fact
that it was concerned with proselytism, and that the act of proselytism is an
archetypal form ("the very essence") of manifestation of belief (see para 36
above). I do not for one moment say that proselytism does not fall within the
scope of article 9(1) – albeit it does not do so expressly – but I would
hesitate to think that it lies at its heart. There is of course a great
difference between proselytism and the teaching of children. It may be that in
some religions (but not all) proselytism is a religious duty. However, it
differs from most religious duties in that it is not directed at telling the
believer or adherent how to live his or her life but at
persuading others, the non-believers or non-adherents, how to live
their lives. As such it is a peculiarly dangerous form of
manifestation. Certain forms of proselytism perhaps more than any other
manifestation of religious or non-religious belief have at times of our human
history brought, by what would now be widely but (sadly) not universally
regarded as its abuse, terrible misery on mankind. There is no necessary
virtue or guarantee against vice in even the plainest kinds of manifestation.
- Hence the importance of article 9(2). Buxton LJ
argues (at para 39 above) that its significance can be overstated, in that to
place the State under the burden of justification is to impose a material
limitation on the freedom of action of its democratic institutions. The
freedom of action remains: but it may need justification. In an event it would
upset the balance of article 9, especially if I am correct to assume that a
religious belief must be worthy of respect in a democratic society and not be
incompatible with human dignity, to over-employ the motivation/manifestation
dichotomy so as to undermine the freedoms guaranteed by article 9(1). It is
accepted in this case by the Secretary of State that he has no submission to
make under article 9(2), were article 9(1) to be engaged. It would seem to me
to be contrary to principle in an article which is expressly balanced by its
second paragraph to seek by a harsh application of a formal test, which in
many cases would be difficult to apply on any rational basis, to prevent even
the engagement of the article in the first place. This would have the tendency
to replace the balanced approach required in article 9(2) by a formal test as
to what amounted to a sufficient manifestation of a belief ex hypothesi
motivated by thought, conscience or religion, the right to freedom of which is
guaranteed.
Article 2 of the First Protocol and "respect" of the parents'
right
- I return to article 2 of the First Protocol to
consider whether there is any failure to "respect" the right of parents to
ensure education and teaching in conformity with their own religious and
philosophical convictions.
- I do not regard this as a "curriculum" case. If
it was a question of what the State could permissibly include in its
curriculum, then the test is one of expediency whose solution may depend on
country and era and the ECtHR allows a wide discretion provided that the State
stops short of indoctrination (Kjeldsen and others at para 53,
Valsamis at para 28). The question here however is not one of State
indoctrination but whether the State can prevent parents who send their
children to a private school, independent of the State, to enable them and the
teachers there to give a special place in the education of their young to
their Christian faith, from giving room to their religious convictions as to
the role of discipline as an integral part of that education. For these
purposes the test is not whether the State's curriculum amounts to
indoctrination, but whether the State's (assumed) interference fails to
demonstrate "respect" for the appellants' religious conviction.
- It follows that the State must "respect" the
religious conviction in question. It is clear on Strasbourg jurisprudence, and
I believe that it is common ground, that "respect" –
"means more than 'acknowledge' or 'take into account'. In
addition to a primarily negative undertaking, it implies some positive
obligation on the part of the State. This being so, the duty to respect
parental convictions in this sphere cannot be overridden by the alleged
necessity of striking a balance between the conflicting views involved…"
(Campbell and Cosans at para 37, and see Valsamis at para
27).
- In the present case, because the parents and
teachers in the schools in question share the same religious conviction, there
is no need in any event for the State to seek to impose a balance between
peoples of conflicting views.
- Of course, there are conflicting views about the
merits of the appellants' position, and I assume, without knowing, that there
would also be conflicting views among Christians about their interpretation of
their Christian responsibilities in this respect. I am aware, for instance,
that despite the texts within Proverbs, the Jewish tradition, presumably part
of the Judaeo-Christian tradition, has been much influenced by a verse in
Leviticus 19:14 ("you shall not place a stumbling-block before the blind")
which has been interpreted by Maimonides among others to relate to the need
for a parent to be cautious in the discipline of children ("lest he cause them
to stumble") and has led another famous medieval rabbinic commentator to
counsel "Rather, he [the child] ought to be spoken to and won over."
- Nevertheless, the Convention protects the rights
of people to differ as to such matters, within the limits of the terms and
principles of its articles. The importance of the safeguards provided by
article 9 and article 2 of the First Protocol are emphasised by the European
Court in Kokkinakis (at paras 31 and 33) and in Kjeldsen and Others
(at para 50) and Campbell and Cosans (at para 32). It is right to
be concerned at the possible dangers of extreme fundamentalist views, but just
as article 9 contains its own limitations inter alia in article 9(2) so I have
assumed that article 2 of the First Protocol is itself subject to the test of
what is worthy of respect in a democratic society and is not incompatible with
human dignity. I also assume for these purposes that "respect" permits the
State, in pursuance of democratic values, to interfere in a proportionate way.
- Nevertheless, just as it is accepted in this
case by the Secretary of State that he has no submission to make under article
9(2), were article 9(1) to be engaged, so no argument been raised to the
effect that the State's interference with any parental right engaged under
article 2 is no more than a proportionate and legitimate interference which
"respects" that right. That again is to enter on the "balancing" or
justification argument which is not before this court.
- I conclude therefore that the appellants' belief
is not only a religious conviction for the purposes of article 2 of the First
Protocol but also entitled to respect thereunder.
Pretty
- The relevant extracts from the argument and the
speeches in R (Pretty) v. DPP [2002] 1 AC 800
and from the judgment in Pretty v. United Kingdom (application 2346/02)
have been set out by Buxton LJ at paras 42/43 and 46 above. On behalf of
the Secretary of State, Mr Keith was reluctant to submit that these took the
argument very much forward, and I am inclined to agree with him. They indicate
that the test in Arrowsmith is an established test, but, despite Mr
Diamond's submission to the contrary, I am not in doubt of that.
- Ultimately their Lordships recognised that Mrs
Pretty's claim would fail under article 9(2) in any event. However Mrs Pretty
was claiming not so much the right to the exercise of a religious belief, but
the right for her husband to act, free of the criminal code, in accordance
with her personal conscience. Nor did she say that her beliefs mandated her
husband's acts but rather that they ought to be regarded as permitting them.
As Lord Bingham of Cornhill said (at para 31) "her belief cannot found a
requirement that her husband should be absolved from the consequences of
conduct which, although it would be consistent with her belief, is proscribed
by the criminal law". Lord Steyn merely said (at para 63) that article 9 was
never intended "to give individuals a right to perform acts in pursuance of
whatever beliefs they hold". And Lord Hope of Craighead pointed out (at para
101) that article 9 could not be strained as far as to give someone "a right
to do whatever her beliefs allow her to do".
- In my judgment these citations do not lend any
support to the judge's conclusions or to the Secretary of State's submissions
thus far.
"Victim"
- In his skeleton argument Mr Keith submitted that
the appellants could not succeed at all for they were not "victims". At the
oral hearing, however, he conceded that the parents among the appellants were
victims, and that seems to me to be a necessary concession. In the
circumstances it is not necessary to decide whether the teachers and head
teachers are also "victims" but I would be inclined to say that they were.
Section 13 of the HRA 1998
- Thus far there is no need for me to decide any
point of substance about the effect of section 13, and I do not. Like Buxton
LJ, I am uncertain whether the expression "religious organisation" could apply
to schools or the expression "members" could apply to parents. But I am
equally uncertain that he is right to conclude that if, without the assistance
of section 13, a court would say that there is no engagement of article 9(1),
it necessarily follows that section 13 can add nothing to the argument. That
would be to ascribe to Parliament, if not, for the reason given by Buxton LJ
at para 49, a complete brutum fulmen, at any rate an intention which
seems oddly worded for the result there proposed by him. Similarly, I am in
doubt (see Arden LJ's provisional view at para 313) that section 3 of the HRA
1998 might ensure that section 13 could in any event make no difference.
Compatibility with the Convention does not necessarily prevent English law
from enhancing or further entrenching a Convention right, unless in a
particular case the effect of doing so would be to undermine another
Convention right. It is difficult to foresee the scope of this argument in the
abstract. In the circumstances I would merely comment that as far as it goes
the section would seem to support my view that the Convention rights inherent
in freedom of thought, conscience and religion are not readily to be treated
as limited ones, for the court is to have "particular regard to the importance
of that right".
The non-interference point
- For the reasons discussed above I would be
satisfied that, on the limited basis on which this appeal was originally
argued on behalf of the Secretary of State, the appellants had demonstrated
manifestation of a religious belief for the purposes of article 9 as well as
the State's lack of respect for a relevant conviction for the purposes of
article 2 of the First Protocol, and that therefore each of those articles of
the Convention was engaged. In the absence of any case under article 9(2) or
any analogous case under article 2, the appellants would have been entitled to
the protection of the Convention. In such an event, it was conceded on behalf
of the Secretary of State that section 548 could be "read down" pursuant to
section 3(1) of the HRA 1998 so as to avoid any need for a declaration of
incompatibility. No submissions as to the precise terms of such a reading down
have been made.
- As stated above, however, after it had reserved
judgment the court itself raised a further point, which led to further
submissions and a new hearing. The point, which I have described above as the
"non-interference" point, raises the question, albeit a relevant belief
exists, and the complainant can show that such a belief is capable of
manifestation for the purposes of article 9, whether there has in fact been
any interference with it or its manifestation. For the purposes of article 2
of the First Protocol the question would, by analogy, be whether any lack of
respect for the parents' right is shown in circumstances where there has been
no interference with it. The factual background to this new point was evidence
before the court that at least some schools allowed or even preferred the
corporal punishment of their pupils, when necessary, to be carried out by
parents.
- The new point brought into clearer focus
evidence that had already been put before the court concerning procedures
which are followed when corporal punishment is deemed necessary. Thus the
principal of the Maranatha Christian School in Wiltshire wrote that the ideal
option is for a parent to attend the school during school hours to administer
the punishment. The second option is for the matter to be discussed with the
parent over the telephone and for the punishment to be administered at home
the same evening. Only in the absence of those options is punishment
administered by the school itself. The head teacher of another school, the
Emmanuel Christian School in Rochdale, said that parents are invited to come
in and administer the corporal punishment themselves, but it is not clear
whether this is the sole, preferred or merely alternative procedure. The head
teacher of a third school, the King's School Senior in Eastleigh, Hampshire,
stated that corporal punishment is administered by himself after consultation
with the parent, but goes on to discuss possible reactions to a change of law
which would prohibit such punishment in schools. He writes:
"Parents would be contacted by phone, personally or by letter
and asked to carry out corporal discipline in school. In the event of their
being unable to do this, a letter would be sent home, after contacting the
parents and the parents would carry out the discipline at home."
- He added:
"Clearly these changes would mean that there would be some delay
before discipline could be administered, which would be less than ideal, but
it would help to ensure that Christian principles could continue to be
upheld in the school's discipline policy."
- In the light of the emergence of the new point
Mr Williamson and Mr Sammons, respectively head teacher and a member of staff
(and parent of a child) at Christian Fellowship School, Liverpool, jointly
made a new witness statement in which they expressed opposition to the concept
of parental implementation of corporal discipline at the request of the
school. They said:
"It is the view of the parents of the children, and the teachers
of the children, that delayed disciplining of children is both unpractical
and unworkable."
- They then developed that submission by reference
to practical considerations from the perspective of the child, the school
community, the parents, and the school. Thus, disruption would be caused to
all concerned. Disciplinary policy would suffer. Discipline administered by
the parent at home at the end of the school day would be out of context and
would mar the loving reunion of parent and child. The discipline would not be
publicly administered, but become a purely private event. Consistency of
discipline would suffer. Justice would be delayed, whereas what was sought was
discipline at the time of the misdemeanour. Although the submission was
primarily put as a matter of what is "both unpractical and unworkable", they
also stated that both parents and teachers
"would regard such a scenario as an infringement of their
rights; the parents because they specifically desire the teachers to
discipline their children (at the time of the misdemeanour) and for the
teachers who seek to serve the Lord in the provision of a Christian
education."
- No specific religious belief was, however,
invoked: although the witness statement was headed with a quotation from
Ecclesiastes 8.11 –
"Because sentence against an evil work is not executed speedily,
therefore the heart of the sons of men is fully set in them to do evil."
(The preacher, King Solomon, is there referring to the paradox of the
apparent continuing prosperity of the wicked.)
- I will consider the effect of this further
evidence, in the context of the evidence on this aspect as a whole, after I
have reviewed the so-called Kalaç line of authority on
non-interference.
The non-interference line of Strasbourg jurisprudence
- Once the possible relevance of this line of
authority had surfaced it becomes clear that the earliest Strasbourg authority
cited to the court on the subject of non-interference is Seven Individuals
v. Sweden, a Commission decision made in 1982 see para 139 above. It was
held that there was no interference in the rights guaranteed by articles 8 or
9 because Sweden's code of parenthood contained no sanction nor was there any
evidence that it had had any effect at all on the implementation of the
criminal law or on the applicants. It may be said that this decision
illustrates that there must be some actual and more than merely theoretical or
formal interference with the rights of a complainant. It is of course a
well-known facet of Convention jurisprudence that decisions are fact
sensitive.
- In Darby v. Sweden (1991) 13 EHRR 774 the
ECtHR found in favour of a complaint under article 1 of the First Protocol
(taken together with article 14) brought by a Finnish citizen who was required
to pay Swedish tax used in part to finance the Church of Sweden's religious
activities. Non-members of the Church who were registered in Sweden could
avoid paying that part of Swedish tax devoted to the Church, but the
complainant could not avail himself of that exemption because, although he
worked and was taxed in Sweden, he did not have the status of being
permanently registered there since he returned home to Finland at the
weekends. In the circumstances the ECtHR did not have to consider the claim
under article 9. However the Commission had upheld it, rejecting Sweden's
submission that he could have avoided the tax by becoming resident in Sweden.
The Commission held that article 9 protected everyone from being compelled to
be involved directly in religious affairs against his will, and continued (at
para 52):
"It cannot be accepted that an individual should be forced to
move from his home and take up residence in the State concerned before he
could enjoy the right to have his freedom of religion respected by that
State."
- In Kontinnen v. Finland (application no
24949/94, decided on 3 December 1996, unreported) the Commission held that the
complaint under article 9 was manifestly ill-founded. The complainant had
commenced employment with the state railways in 1986 and in 1989 had joined
the Seventh-day Adventist Church and had thus become obliged to observe the
sabbath on Saturdays, commencing at sunset on Friday. He had never been
required to work on the weekend, but he started leaving his work early on
Friday nights, giving his employers warning and offering to make up his missed
hours by working longer in the summer, when sunset on Fridays fell later. He
was dismissed. The Commission found -
"that the applicant was not dismissed because of his religious
convictions but for having refused to respect his working hours. This
refusal, even if motivated by his religious convictions, cannot as such be
considered protected by Article 9(1). Nor has the applicant shown that he
was pressured to change his religious views or prevented from manifesting
his religion or belief.
"The Commission would add that, having found his working hours
to conflict with his religious convictions, the applicant was free to
relinquish his post. The Commission regards this as the ultimate guarantee
of his right to freedom of religion. In sum, there is no indication that the
applicant's dismissal interfered with the exercise of his rights under
Article 9(1)."
- It would seem therefore that in a conflict
between one's voluntarily accepted contractual obligations and one's religion,
it is the former which must prevail, even at the expense of one's employment.
It can only be in this sense that it is possible to say that the solution lay
in the applicant's own hands or that there was no interference with the
manifestation of his religion. I wonder whether this hard doctrine (cf the
minority view of one member of the Board of Civil Servants, and the
submissions made on behalf of the applicant, which indicate how easy it would
have been to accommodate the applicant's requests) would apply where no other
employment compatible with the applicant's religion was possible.
- Valsamis (see paras 145/146 above) was
decided a few weeks after Kottinen. It also contains a non-interference
point, premised on the finding that the child's obligation to take part in the
school parade "was not such as to offend her parents' religious convictions"
(at para 37). The ECtHR accepted the parents' pacifist convictions as
Jehovah's Witnesses, but nevertheless rejected their case that those
convictions had been offended. It would seem therefore that the Court was
prepared to make up its own mind as to the objective impact of the facts on
the complainants' genuine and established religious beliefs.
- Stedman v. United Kingdom (1997) 23 EHRR CD168 was a case similar to Kottinen but involving working on Sunday.
It appears that the applicant was dismissed for refusing to sign a contract
requiring her to work on Sundays. She resigned rather than compromise her
religious beliefs. The Commission merely followed its decision in
Kottinen, although in that case the applicant lost because he had
already contracted to work on Friday evenings after winter sunsets. In
contrast it appears that in Stedman the original contract had not
involved Sunday working. It seems therefore that Stedman involves an
extension of any principle involved in Kottinen. The reasoning
contained in the decision, however, is very brief and formal.
- Kalaç v. Turkey (1997) 27 EHRR 552
concerned a judge advocate in the Turkish air force who was compulsorily
retired for breach of discipline and infringing the principle of secularism.
He was charged in particular with membership of a fundamentalist (Muslim) sect
and participation in unlawful fundamentalist activities. The Commission upheld
his complaint that there had been a violation of article 9. The ECtHR,
however, ruled against his complaint on the ground –
"that his compulsory retirement did not amount to an
interference with the right guaranteed by Article 9 since it was not
prompted by the way the applicant manifested his religion" (para
31).
- The Court's reasoning is contained in the
following extract:
"28. In choosing to pursue a military career Kalaç was accepting
of his own accord a system of military discipline that by its very nature
implied the possibility of placing on certain of the rights and freedoms of
members of the armed forces limitations incapable of being imposed on
civilians. States may adopt for their armies disciplinary regulations
forbidding this or that type of conduct, in particular an attitude inimical
to an established order reflecting the requirements of military
service.
"29. It is not contested that the applicant, within the limits
imposed by the requirements of military life, was able to fulfil the
obligations which constitute the normal forms through which a Muslim
practices his religion. For example, he was in particular permitted to pray
five times a day and to perform his other religious duties, such as keeping
the fast of Ramadan and attending Friday prayers at the mosque.
"30. The Supreme Military Council's order was, moreover, not
based on Group Captain Kalaç's religious opinions or beliefs or the way he
had performed his religious duties but on his conduct and attitude.
According to the Turkish authorities, this conduct breached military
discipline and infringed the principle of secularism."
- Unless the essence of the reasoning is properly
contained in the special case of military service (para 28) or in some
particularist view of the facts (para 30), it is difficult to escape the
conclusion that it might have been more appropriate to deal with the complaint
under article 9(2), rather than to reject it under article 9(1): see the
criticism in Clayton & Tomlinson, The Law of Human Rights, 2000, at
973. In any event, this court is not concerned with military service, nor
indeed with any voluntary act by which the appellants have bound themselves to
accept some limitation on what might otherwise have been the full exercise of
their rights. Nevertheless, this decision does demonstrate, albeit on its own
special facts, that in considering whether there has been an interference with
rights protected under article 9, the ECtHR will consider whether, subject to
any voluntarily accepted limitation, the complainant remains essentially free
to exercise his rights of religion.
- Jewish Liturgical Association Cha'are Shalom
Ve Tsedek v. France (2000) 9 BHRC 27 concerned a French licensing regime
whereby ritual slaughter was permitted on terms not otherwise lawful under
domestic law, in that there was an exemption from the requirement of
pre-stunning of animals. The regime required the licensing of representative
bodies. One such body, ACIP, an umbrella organisation regarded as
representative of the majority of French Jews, was so licensed. However, a
substantial number of French Jews, some 40,000, of a more orthodox persuasion,
required more stringent conditions of ritual slaughter to be performed than
were practised in the ACIP abattoirs, necessitating examination of the
carcasses for any impurity or previous disease. It was not in dispute that
these requirements for the certification of "glatt" kosher meat were a matter
of religious belief, practice and observance. The complainant association,
which sought to provide a glatt kashrut service for its adherents, was
nevertheless refused a licence, apparently on the grounds that the association
was not a religious body and/or that its adherents were insufficiently
numerous. However, before the ECtHR the French government's primary argument
was that there had been no interference with the association's adherents'
rights under article 9(1): because glatt meat was available from Belgium;
because a small number of ACIP butchers were willing to conduct the further
examinations necessary for the assurance of glatt meat; and because ACIP was
willing to reach an agreement with the association whereby it would institute
for a fee the required examination (albeit the association doubted ACIP's
ability to do so).
- The ECtHR accepted these latter submissions and
rejected the complaint. In the course of doing so, it said (at para 80):
"In the court's opinion, there would be interference with the
freedom to manifest one's religion only if the illegality of performing
ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from
animals slaughtered in accordance with the religious prescriptions they
considered applicable."
- In my judgment the test of impossibility is
unlikely to be right. On any reasonable view of the vindication of the rights
and freedoms guaranteed by the Convention, to say that interference begins
only where impossibility is proved would be to emasculate those rights and
freedoms. That was not the test propounded by the Commission in Darby v.
Sweden. I would have thought that once some material interference is
proved under article 9(1), it becomes a matter for the balancing act to be
conducted under article 9(2). There was a powerful dissent by members of the
Court, on that and other aspects of the decision.
- This then is a rather ambivalent collection of
authorities, but even so there is a consistent thread running through them to
the effect that it is not enough to show that a right protected under article
9(1) is theoretically in play unless it can also be shown that that right has
been interfered with in some material way. In judging what is material the
ECtHR will apparently have regard to any limitations which the complainant has
voluntarily accepted. And it will not be bound to take the complainant's
protestations of interference at face value if on an objective assessment they
do not amount to anything material.
- It is therefore necessary to have regard to the
non-interference point for the purposes of the present case. I seek to do so
conscientiously, bearing in mind that it was not a point originally taken on
behalf of the Secretary of State, but also that logically there can be no
valid complaint without a finding of interference. Above all, I remain anxious
that the non-interference point should not become the source for a "with one
bound our hero was free" form of jurisprudence.
- With these thoughts I approach the evidence
before this court. In my judgment there is nothing in that evidence, other
than the new witness statement of Messrs Williamson and Sammons, to throw any
doubt on the proposition that a system of corporal punishment at school could
be successfully maintained even though the implementation of any such
punishment would be at the hands of parents rather than teachers, whether that
is done at school or even at home. The involvement of parents is indeed the
preferred option of at least one school; an existing option of at least one
other school; and in the case of a third school is regarded as an option which
could be introduced in the light of section 548 and which, although "less than
ideal" would "help to ensure that the desired Christian principles would
continue to be upheld in the school's discipline policy". When, therefore, I
bear in mind that in the appellants' scheme of things corporal punishment is
but one part of a holistic Christian approach to punishment, at home as well
as at school, and, on the evidence and as is likely a relatively rare form of
punishment, and in any event one to be applied "only after careful
consideration of all the circumstances of the case" (see the citation by Arden
LJ from the evidence at para 227 of her judgment), I cannot believe that the
need for it to be applied by parents rather than by teachers can affect the
practicalities of that system, and certainly not in a way that impinges on the
appellants' belief.
- Is there then anything in the new witness
statement to cause me to have doubts about that judgment, or, as Arden LJ has
done, to distinguish the Liverpool school tradition as speaking to a further
refinement of Christian belief? Seeing the difference of opinion on this
question between Buxton LJ and Arden LJ, I have given this matter particularly
anxious scrutiny. In the end I have maintained my first insight and have
concluded that no distinction is to be made. In his first witness statement Mr
Williamson, the head teacher of the Liverpool school, was happy to annex the
letters or other material from the head teachers of other schools in which
they spoke, as set out above, of a more relaxed attitude to the practicalities
of parental implementation of school corporal discipline. It is only in his
second witness statement that, together with Mr Sammons, he rejects the
practicalities of such a system. It seems to me that, despite their comment
that parents, children and teachers would regard such a scenario as an
infringement of their rights, the real objection goes to practicalities or
modalities, not to any difference in belief. I do not regard the citation of
King Solomon's dictum as taking the matter further. No one doubts that delay
is an enemy of justice. But what amounts to delay depends on the
circumstances. Justice does not depend on its instant execution, even in a
school. King Solomon was talking about the paradox of God's justice, for the
very reason that it may well be delayed: for God is long-suffering.
- In my judgment therefore section 548 does not
interfere materially with the appellants' manifestation of religious beliefs.
I accept the existence of those beliefs, and that a complete ban on corporal
punishment would interfere with the manifestation of them and would have to be
justified under article 9(2), a question with which this court has not been
concerned but which might possibly arise in another case. But I do not on the
evidence before the court think that section 548 has materially interfered
with a Christian scheme of corporal punishment in school in circumstances
where the actual application of the punishment can be performed by the parents
themselves.
- In arriving at this conclusion I have borne
section 13 of the HRA 1998 in mind (see para 173 above). It is possible, but I
do not decide, that even the question of non-interference is indeed a
"question arising under this Act" which might affect the exercise by the
appellants of their rights under article 9(1). On the assumption that section
13 might apply, I have sought, as I trust this judgment will have
demonstrated, to ensure that I have had particular regard to the importance of
those rights. Even so, I have concluded that section 548 does not materially
interfere with those rights.
- It follows that, for the same reasons, there can
be no infringement of the appellants' rights under article 2 of the First
Protocol either.
Articles 8 & 10
- In the circumstances I cannot see how there
could be any infringement of the appellants' rights under articles 8 or 10. In
any event I agree with what Buxton LJ has said about article 8. As to article
10, if I were wrong about non-interference, it would still be unnecessary to
deal separately with article 10. Since the essence of the appellants' beliefs
is that the existence and use of a scheme for corporal punishment in school
(whether or not the actual application of the punishment is at home) is part
of a teaching process, I would prefer to say nothing further about it.
Conclusion
- In conclusion, I would dismiss this appeal, on
the ground that the appellants have failed to show any violation by way of
interference with any of their Convention rights.
Lady Justice Arden :
- This case is another illustration of what Lord
Hope observed in R v Kansal [2001] 3 WLR 751:
"The development of our jurisprudence on [the Human Rights Act
1998] has only just begun. New problems are being revealed every week, if
not every day."
- In my judgment, the appeal must be dismissed for
the reasons given below. In summary:
a) On the evidence, it is an integral and necessary part of the
religious beliefs of the appellants that, where appropriate, they should
discipline children in their care by what the judge called "smacking". In
the view of some of the appellants such chastisement for conduct at school
can be carried out at school or at home by the child's parents. However, the
religious belief of some of the appellants, whom I will call "the Liverpool
school", is that such chastisement must be carried out without delay, and
that this will from time to time involve its being carried out at school by
teachers.
b) On the basis of the evidence and arguments in this case, when
they impose such chastisement, the appellant parents "manifest" their
religious beliefs for the purposes of article 9 of the European Convention
on Human Rights ("the Convention").
c) However, the beliefs of the appellant parents do not require
that they should send their children to a school, alternatively (save in the
case of the Liverpool school) that chastisement should be carried out by
teachers. Therefore, section 548 of the Education Act 1996 (as amended), by
prohibiting the imposition by teachers of corporal punishment, does
not interfere with the appellant parents' freedom to manifest their
religion. There is no violation of the appellant teachers' rights under
article 9 of the Convention because they cannot have any better rights than
the appellant parents.
d) There is no violation of articles 8 or 10 of the Convention,
or of article 2 of the First Protocol to the Convention.
- The scheme of the remainder of this judgment is
as follows:-
1. Article 9
Introduction
The appellants' beliefs
Correction is limited
Strasbourg jurisprudence on corporal punishment in
schools
Corporal punishment and the common law
Rights of the child
Section 548 of the Education Act 1996
Importance of freedom of religion and competing
values
What is a religious belief? The court's
function
Interpretation by the Strasbourg organs of the qualified
right conferred by article 9
Application of the Strasbourg jurisprudence to this
case
2. Article 2 of the First Protocol
Respect for parents' rights
"philosophical conviction"
3. Section 548 of the Education Act 1996
4. Additional matters
Article 3 of the Convention
Articles 8 and 10 of the Convention
Section 13 of the Human Rights Act 1998
- Article 9
Introduction
- Article 9(1) of the Convention contains an
absolute right to freedom of religion and a qualified right to manifest one's
religion by (among other ways) practice. Article 9(1) is in these terms:
"1. 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 private,
to manifest his religion or belief, in worship, teaching, practice and
observance.
- Freedom to manifest one's religion is qualified
by article 9(2):
"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."
- Article 9 and later provisions of the
Convention (such as article 14, prohibition of discrimination in the enjoyment
of Convention rights) show that the Convention protects and promotes, in terms
of beliefs, a pluralist society. The same point has been made by the European
Court of Human Rights ("the Strasbourg court") in the Kokkinakis case
to which I refer below. By a pluralist society, I mean one that treats people
of different opinions and religious beliefs on the same footing, without
any one group having dominance over any other group. It is one of
the functions of the court to stand as a bulwark between the state and the
interests of minorities which the Convention regards as deserving of
recognition in a modern, democratic and plural society. The appellants' claim
is one for religious tolerance.
- I should like at this point to express my
appreciation of the judge's judgment, and also to acknowledge the benefit
which I have derived from having read the judgments of Buxton and Rix LJJ in
draft. There are several points in those judgments with which I am in
disagreement, but on many of these issues there is room for philosophical
debate and different policy approaches. It would be an impossible task to
answer all the points that they or the parties make, and I have not sought to
do so. Anyone reading all four judgments might well be reminded of what I
understand to be a Hindu principle: "Truth is one – men call it many things".
However, in my view the differences are potentially significant: they reflect
different views as to the role of freedom of thought, conscience and religion
under the Convention.
- There is no suggestion in this case that the
State has violated the absolute right to freedom of religion: the State has
not prevented the appellants from holding any particular beliefs. This case
turns on whether there has been any violation of the qualified right conferred
by article 9(1) of freedom to manifest religious beliefs by worship, teaching,
practice and observance. This case is unusual in many respects, not least
because it requires the court to ascertain and comprehend the religious
beliefs of the appellants. That exercise does not have to be performed by a
court very often, and, as the appellants deny that it is open to a court to
reject their beliefs, I will have more to say about this topic about this
later in this judgment (see below "What is religious belief? The court's
function"). The case is also unusual because both the parents and teachers
are at one in their beliefs as to the value of the form of discipline for
children for which they contend. Moreover, the Secretary of State does not
contend that these views are contrary to the public interest.
- The beliefs in question here are Christian
beliefs but the court's function would, of course, be exactly the same whether
the beliefs were, for example, Jewish, Muslim, Hindu, Buddhist or Sikh. I
would add this. I have not found the beliefs relied on necessarily
straightforward and it might usefully be borne in mind for any future case of
this kind that the court is likely to need help in understanding these matters
unless very clearly explained.
The appellants' beliefs
- It is important to understand what the parents
in this case contend to be their religious beliefs. The judge was able to
summarise their beliefs in some two or three sentences. For my part, I have
found it necessary to consider their beliefs in rather more detail in order to
see how the Convention applies to them. What follows is a short and no doubt
inadequate reflection of some of the views expressed in the evidence of the
teachers and parents in this case contained in the appeal bundle (particularly
pages 11 – 14, 23, 24, 25, 37, 57, 58, 63, 66, 71 74, 76 – 79, 85, 88, 90, 94,
96 of the main appeal bundle, and pages 40 – 43 of the supplementary appeal
bundle).
- As Christians, the parents believe that
children are the gift of God and that it is part of the Christian duty of
parents to bring up their children as Christians so that they conduct
themselves in accordance with the Bible, which contains the Word of God. They
also believe that the Bible teaches that as loving, caring parents they should
if necessary chastise their children as a form of correction.
- They also believe that family and school are a
partnership in the upbringing of children and that the school should reinforce
the principles of the Christian faith taught at home and that, in fulfilment
of the duties which the Bible imposes on them, they should be free to give
authority to their children's school to administer corporal punishment as a
means of correction where the child has committed behaviour which contravenes
Christian precepts and in order to convey in that situation respect for God's
commandments. They consider that such correction is applied not to the
child but for the child and out of love for the child:-
"Discipline is administered because we love the child and
disapprove of wrong attitudes and behaviour. This is made very clear to the
child before and after any corporal discipline is applied. The child is
always affirmed and accepted. It is the behaviour and attitudes that need to
be changed." (Letter dated 21 July 1999 from Mr D Greenwood, Headteacher,
The King's School Senior, Hampshire.)
- In an endeavour to convey this approach, I will
for my own part refer to the corporal punishment which these parents have in
mind as "correction" in order to distinguish it from corporal punishment
applied simply as punishment. I accept that many people on principle oppose
any form of corporal punishment for children, even a smack, and whether that
punishment is imposed by teachers or by parents. In the opinion of many, this
form of punishment is wrong because it violates the dignity of the child. As I
have already said, the court does not have to decide whether this opinion is
right or wrong. However, in my judgment, just as that opinion is
understandable and responsible, so too it cannot be said that the appellants'
belief in the correction in issue in this case is incapable of being
reasonably held. The circumstances in which correction is applied, must of
course, be relevant, but children need moral guidance and it is said by some
that (unintended) psychological distress and damage can flow from other
sanctions imposed on children, such as verbal rebukes and isolation. In this
regard, the proper upbringing of children raises moral issues of the greatest
importance on which views may reasonably differ in a modern democratic
society.
- Of course, society may decide that it is
contrary to the public interest that even a smack should be unlawful because
it might lead to something much worse. However, the Secretary of State places
no reliance on this appeal on that argument, which would have been an argument
based on article 9(2) of the Convention. Moreover, the appellants have not
themselves sought to engage in the debate referred to above. Their case is
that correction is part of their religious beliefs and that the Convention
requires the State to respect those beliefs.
- The appellants rely on several Biblical texts,
including the following passages from the Book of Proverbs (as appearing in
The New English Bible):-
11. My son, do not spurn the Lord's correction or take offence
at his reproof;
12. For those whom he loves the Lord reproves, and he punishes a
favourite son. (Proverbs, Ch.3)
24. A father who spares the rod hates his son, but one who loves
him keeps him in order (Proverbs, Ch.13)
6. Start a boy on the right road, and even in old age he will
not leave it. (Proverbs, Ch.22)
15. Rod and reprimand impart wisdom but a boy who runs wild
brings shame on his mother...
17. Correct your son, and he will be a comfort to you and bring
you delights of every kind. (Proverbs, Ch.29)
- It follows that it is positively part of the
appellants' belief in this case that the Bible instructs them to apply
correction to children in appropriate cases. That is an essential element of
this case. Moreover, in respectful disagreement with Buxton LJ, the references
to "rod" clearly support the appellants' case that the punishment which these
passages enjoin is physical. It does not seem to me to be a point which
adversely affects the appellants' case, as Buxton LJ has held (judgment,
paragraph 35), that a paddle or strap (rather than a rod) is used (see the
next paragraph), or that there are limits on its use (see below) not expressly
addressed in these passages, or that the identity of the person who is to
administer the correction or the type of offences for which it is to be
administered is not specified. If the Convention right to freedom of religion
is to be given practical meaning, beliefs cannot be subject to scrutiny of
this intensity. There must be many religious beliefs that could not pass the
acid test of being fully worked out. Furthermore, I do not agree with the
judge that the appellants' belief in correction is not a religious belief but
simply a belief that it is a more effective deterrent (a point to which I
return below). That conclusion appears to me to be contrary to the evidence as
summarised above. Like the judge, however, I anticipate that not all
Christians could nowadays contend that they read the Bible as literally as the
appellants do. If anyone else were to apply the same correction but for other
reasons, or the belief of the appellants does not qualify as a religious
belief, then as explained below the appellants would have to satisfy the court
that they have a relevant philosophical conviction for the purposes of the
Convention.
- In considering the nature of the correction
sought to be applied by the appellants, it must be placed in the context of
the Christian message. The quintessence of Christianity is that God is a God
of love, who forgives and desires reconciliation with human beings, and that
the basic duties of Christians in all aspects of their lives are to love God
and to love one another. The duty of God necessitates, of course, obeying His
commandments. The schools to which the parents send their children provide
education on Christian principles. Correction (as defined by me above) has,
therefore, to be seen in the context of a belief that attaches great
importance to love. This can be seen from the evidence filed by the
appellants:-
"Corporal punishment in the form of the paddle for boys and the
strap for girls (administered by female staff to girls) is used only after
careful consideration of all the circumstances in the case. Parents are
informed of the reasons for its use.
It is never administered with the aim of humiliation, but to
minister justice, forgiveness and reconciliation. In short, to help form
godly character. Only designated staff will administer punishment, and a
school record will be kept. Most children will never require this form of
discipline, its presence in the school is an effective deterrent ...
Relationships must be maintained ... Wrong actions can be
rectified and the conscience cleared ... No remembrance is made of past
misdemeanours." (Documents submitted on behalf of the Christian Fellowship
School, Liverpool).
- The schools in question are in the independent
sector. The schools seek the agreement of parents to their policy on
discipline, including correction.
- It does not in my judgment matter that there is
not an exact correspondence between the Biblical texts which have been cited
and the correction which the appellants seek to support. The appellants have
properly sought to put forward a strictly regulated form of correction to
avoid any risk of its being confused with a more severe form of corporal
punishment which would be either in contravention of the Convention or
contrary to the common law.
- It must also be borne in mind that scriptural
texts are often subject to a substantial amount of interpretation by scholars
and theologians. Moreover some adherents may read scriptural texts more
literally than others. In addition scriptural texts have been known to
conflict. The relevant question here is not why the appellants hold their
beliefs, but what do they believe? Under article 9(1), it is not for the state
or the court to approve or disapprove of those beliefs or to substitute its
own understanding of Christianity for that of the appellants.
- Moreover, it must also be recalled that the
Secretary of State has not suggested that the appellants' beliefs are not
genuinely held. His case is that correction does not amount to the
manifestation of a religious belief within the qualified right conferred by
article 9(1). If he had challenged the appellants' beliefs, there would have
been more evidence, including perhaps oral evidence and cross-examination.
- A subgroup of the appellants, referred to above
as "the Liverpool school" and who include Mr P R Williamson, Headteacher of
the Christian Fellowship School, Liverpool, and Mr Roy Sammons, the parent of
a child at that school, go further in their beliefs. Their belief is that the
discipline of a child by correction must occur at the time of the
misdemeanour. They rely on the following passage from the Bible (authorised
version):-
"Because sentence against an evil work is not executed speedily,
therefore the heart of the sons of men is fully set in them to do evil."
(Ecclesiastes, chapter 8, verse 11)
In the New English Bible this reads:
"It is because sentence upon a wicked act is not promptly
carried out that men do evil so boldly.". (Ecclesiastes chapter 8, verse
11).
- Their beliefs, therefore, differ from those of
other appellants because they believe that correction, when appropriate,
should be applied without delay at school and in the school context. They gave
a number of pedagogical reasons for their belief. There is no reason why such
a subgroup of adherents cannot exist. The Convention does not require that all
adherents of the same religion have exactly the same beliefs. In a pluralist
society the freedom for adherents to have different beliefs must be respected.
I do not share Buxton LJ's difficulties with the fact that the Liverpool
school have different views from those of the other appellants. I am prepared
to accept that their belief in immediate correction forms a part of their
religious beliefs. Their belief is that, to achieve its religious purposes,
correction must be carried out in context.
- Although not probative of the appellants'
belief in this case, I note that, when the Scottish Law Commission published a
discussion paper on corporal punishment, the responses it received on
consultation indicated that some of their consultees also contended that the
Bible authorised correction. The Free Presbyterian Church of Scotland
responded that:
"The scriptures concur that corporal punishment is a valid form
of parental discipline when used at the correct time with due
restraint."
The Glasgow Presbytery of the Free Church of Scotland also responded:
"Many Christian parents … hold it as their duty under God to
bring up their children making responsible use of corporal
punishment."
(see Report on Family Law (1992) (Scot. Law Com. No. 135) para.
2.80). Reference may also be made to Christian Education of South Africa v
Minister of Education [2001] 9 BHRC 53, and Seven Individuals v Sweden
[1989] 29 DR 104, cited by Rix LJ).
Correction is limited
- No party to this appeal has suggested that
correction amounts to child abuse. I have referred to the emphasis placed on
love for the child. Moreover, correction is only applied to the buttocks or
the hand. There is no evidence that it leaves any physical mark on the child.
It is not applied as punishment for poor academic performance. It is to be
noted that the parents and the teachers are at one on their approach to
correction: it is not contended that correction could be administered without
the authority of the child's parents or against the wishes of the teachers.
Strasbourg jurisprudence on corporal punishment in schools
- Mr Hugo Keith, for the Secretary of State,
relies on the fact that the Strasbourg court, in its conclusion in
Costello-Roberts v UK [1993] 19 EHRR 112 that article 8 (respect
for private life) was not violated in that case, stated that it did not wish
"to be taken to approve in any way the retention of corporal punishment as
part of the disciplinary regime of a school" (Judgment, paragraph 36). I
accept that that indication is very significant but it must have been seen in
the context of the case. The punishment was said not to be related to the
seriousness of the offence. It was carried out on a seven year old child by
the headmaster, whom the child did not know, three days after the offence. The
applicant's parents did not approve of corporal punishment administered by the
school. The applicant's case was that this system was to be distinguished from
"physical chastisement administered in the home where the parent might punish
the child for some immediate piece of naughtiness, but in the context of a
loving relationship with continuous physical contacts." The Strasbourg court
did not disclaim approval of all chastisement; it said nothing about
discipline outside schools. The correction in this case, to my mind, on the
evidence more nearly corresponds to that described above as administered in
the home. It does not involve a serious breach of personal integrity such as
led the Strasbourg court in A v UK (1998) 27 EHHR 611 to hold that
corporal punishment by the applicant's stepfather resulted in a violation of
article 3. Accordingly, I do not consider that it automatically follows that
the Strasbourg court would hold that a religious or other belief which entails
this form of correction is not worthy of recognition under the Convention.
Corporal punishment and the common law
- Parents and others standing in loco parentis
(that is, in place of parents), if prosecuted in a criminal case or sued in
civil proceedings for assault, enjoy under our common law a defence if the
acts complained of constituted moderate and reasonable chastisement. In some
of the reported cases, the parent had not expressly authorised the person in
loco parentis to exercise this right. Nonetheless, the person in loco parentis
was deemed to have the right to impose moderate and reasonable chastisement.
No case has been cited to us which turned on express authority being given by
a parent for this purpose.
- The defence was sought to be removed from
teachers by statute. This was done in stages but the relevant statutory
provision is now section 548 of the Education Act 1996.
- The Secretary of State has not suggested that
correction as proposed by the appellants would not be within the common law
defence of justification described above. Moreover, the Secretary of State
accepts that the appellant parents may apply corporal punishment at home at
the request of their children's schools.
- Nor has the Secretary of State suggested that
there are alternative methods of disciplining children which do not involve
any imposition of physical force but would yet satisfy the appellants'
religious beliefs. Examples might include detention or exclusion from school
altogether. However, at first sight, those forms of punishment would seem to
be inconsistent with the message of love and reconciliation, which the
appellants contend are at the heart of their religious beliefs.
Rights of the child
- The Secretary of State did not contend that the
administration of correction necessarily involved an infringement of any of
the rights of the child. Indeed it seems to me that it would be impossible to
do so so long as the defence of reasonable chastisement remains an
unchallenged part of the common law. I would observe that in this respect the
common law effectively treats the child as the property of the parent, so far
as reasonable chastisement by the parent is concerned, and the courts may one
day have to consider whether this is the right approach.
- So far as the Convention is concerned, the
Secretary of State has not contended that, if the parents had the right to
freedom of religion for which they contend, it would violate the child's
rights, contrary to article 17 of the Convention. If this were the case, it
would to my mind be difficult to see why such matters as ritual male
circumcision in other religions would not similarly be in violation of the
Convention. Be that as it may, it would appear from Costello-Roberts v
UK, above, that Strasbourg jurisprudence does not hold that the child's
consent is a prerequisite to corporal punishment.
- On 4 October 2002 the Committee on the Rights
of the Child established under that Convention published a report in which it
expressed the view that the defence of reasonable chastisement conferred on a
parent under English law did not comply with the principles and provisions of
that Convention. However, no reliance has been placed by the parties on the
United Nations Convention on the Rights of the Child, which has thus played no
part in this case.
- The Secretary of State has not contended that
correction would be contrary to the best interests of the child. The
appellants submit that the courts have proceeded on the footing that in
appropriate cases it is in the best interests of the child that he should be
brought up in conformity with the religious beliefs of the child's parents.
Section 548 of the Education Act 1996
- Section 548 of the Education Act 1996 (as
amended) is set out in material part below. Section 548 does not say that
corporal punishment is unlawful. It provides that there is no longer any
automatic authority for a teacher or other member of staff of an educational
institution to apply corporal punishment. The position taken by section 548 is
understandable even in the absence of Strasbourg jurisprudence. There must be
many teachers in this day and age who would see corporal punishment as
unnecessary or a sign of failure or as inconsistent with their function as
role model adults. It is common ground between the parties that, by virtue of
section 548, teachers are no longer deemed to have authority to administer
corporal punishment by virtue of their position.
Importance of freedom of religion and competing values
- I now turn to article 9 of the Convention. The
presence of article 9 in the Convention is a recognition that human life does
not belong solely to the secular order. The Convention deems spiritual as well
as physical integrity to be worthy of protection. Were it otherwise, some of
the most significant aspects of man's existence would be sidelined. The
secular values of the Convention arguably owe their origin to the religious
thought, and to adherents of religion those values are not ends in themselves.
The Strasbourg court explained the role of freedom of religion, the value
placed on it by the Convention and its content thus in Kokkinakis v
Greece (1993) 17 EHRR 397:-
"31. As enshrined in article 9, freedom of thought, conscience
and religion is one of the foundations of a 'democratic society' within the
meaning of the Convention. It is, in its religious dimension, one of the
most vital elements that go to make up the identity of believers and of
their conception of life, but it is also a precious asset for atheists,
agnostics, sceptics and the unconcerned. The pluralism indissociable from a
democratic society, which has been dearly won over the centuries, depends on
it.
While religious freedom is primarily a matter of individual
conscience, it also implies inter alia, freedom 'to manifest [one's]
religion'. Bearing witness in words and deeds is bound up with the existence
of religious conviction.
According to article 9, freedom to manifest one's religion is
not only exercisable in community with others, 'in public' and within the
circle of those whose faith one shares, but can also be asserted 'alone' and
'in private'; furthermore, it includes in principle the right to try to
convince one's neighbour, for example through 'teaching', failing which,
moreover, 'freedom to change [one's] religion or belief,' enshrined in
article 9, would be likely to remain a dead letter. "
- Religious beliefs can be a source of moral
values for a society, but religion, especially institutionalised religion, can
also be intolerant to non-believers (or other sects of the same religion). In
a society where different beliefs are held and where many people may hold no
religious beliefs, it is necessary for those who do hold such beliefs to
observe tolerance and moderation in the expression of their beliefs in the
public sphere. Thus those who have rights can also have responsibilities. The
expression of religious beliefs by one group may otherwise give rise to
conflict with another group holding different beliefs, or a group holding no
religious beliefs. It is not only the rights of those who have religious
beliefs which must be respected but also the rights of those who do not hold
such beliefs. A balance has to be drawn between different sections of society
and (as appears below) the Strasbourg organs have sought to do this by placing
a restrictive interpretation on the scope of the qualified right conferred by
article 9(1).
- There are also matters for which rules may be
laid down for the general good of society. These rules too may impact on the
exercise of religious freedom, for example, regulations on the slaughter of
animals restricting ritual slaughter required by dietary laws (see the facts
of Jewish Liturgical Association Cha'are Shalom ve Tsedek v
France [2000] 9 BHRC 27). The Convention expressly recognises the
importance of such rules in article 9(2) to which the qualified right under
article 9(1) is subject.
What is a religious belief? The court's function
- In paragraphs 40 to 46 of his judgment (set out
in full by Buxton LJ), the judge came to the conclusion that the appellants
were not asserting a religious belief. There were essentially two reasons for
this conclusion. First, he considered that their belief was really that one
form of discipline was more efficacious than another. In reaching this
conclusion, and consistently with it, he rejected the submission that the
appellants could have a philosophical conviction about corporal punishment (I
address this point more fully below). The judge's second reason for his
conclusion that the appellants were not asserting a religious belief was that,
while the appellants' belief in correction was in accordance with their faith,
it did not embody or define their faith. It was not one of the "articles of
faith".
- For their part, the appellants challenged the
power of the court to do more than accept from the appellants what their
beliefs comprised. Moreover, they resisted any suggestion that their belief in
correction had be an "article of faith", as the judge found. Accordingly, I
now turn to consider in more detail the court's function when it is asserted
that a belief qualifies for protection under article 9(1).
- I have already said that the court must
ascertain and comprehend the religious beliefs of the appellants. In my
judgment, it is a mixed question of fact and law whether a person has a
religious belief for the purpose of article 9. Thus the first step is for the
judge to make findings on the evidence as to what are the actual beliefs of
the complainant, so far as relevant. In most cases, this is a function to be
carried out by the trial judge though, for reasons I have explained, I have
amplified those findings. The second step is for the judge to decide whether
those beliefs constitute religious beliefs for the purposes of the Convention.
The latter is principally a question of law.
- As to the first step, it is a fallacy to oppose
that fact finding is the same jurisprudential process in every case. Bowen LJ
famously said that the state of a man's mind is as much a state of fact as his
digestion (Edgington v Fitzmaurice (1885) 29 ChD 459), but it does not
follow that the way in which a state of mind is to be found is the same as for
a straightforward biological fact. In the present case, one feature already
noted is the fact that religious texts cannot be read wholly literally.
Religious texts often form the basis from which adherents develop specific
beliefs. It is not the court's function to judge whether those beliefs are
fairly based on the passages said to support them. Its function at the
fact-finding stage is to decide what the beliefs are and whether they are
genuinely held by the complainant. The fact that the beliefs are based on
religious texts may help the court reach its decision on this factual issue.
The beliefs of the appellants in this case are supported by Biblical texts.
Accordingly, I do not consider that it was open to the judge on the evidence
to hold that their belief was in the efficacy of correction and for that
reason that their belief in correction was not a religious belief.
- Having determined what beliefs the complainants
actually hold, the court must decide as a matter of law whether the beliefs
constitute religious beliefs for the purpose of article 9. This is the second
step. I accept the submission of Mr Paul Diamond, for the appellants, that it
is no part of the function of the court to express any approval or disapproval
of those beliefs as religious beliefs. As the Strasbourg court observed in
Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 13, "in
principle, the right of freedom of religion for the purposes of the Convention
excludes assessment by the state of the legitimacy of religious beliefs or the
ways in which those beliefs are expressed" (judgment, paragraph 117). However,
the court has to ask itself whether the beliefs qualify for recognition for
the purposes of the Convention. Two points arise. First, the court has to be
satisfied that the appellants' beliefs are religious beliefs. Second, the
court must be satisfied that the beliefs sought to be protected are consistent
with the values embedded in the Convention.
- Convention jurisprudence does not define what a
religious belief is for the purposes of the Convention. Need it, for instance,
be, as domestic charity law requires, a monotheistic belief? Need it even be a
theistic belief at all? When it comes to asking what a religious belief is, it
is in my judgment important not to approach the issue through the spectacles
of a majoritarian belief. In a modern pluralist society, these issues must be
approached with tolerance and in a way which respects the diversity of man's
spiritual needs. That said, it is difficult to provide a satisfactory
definition of religion, but as it seems to me it must at minimum be a system
of beliefs relating to the divine, or to spiritual matters, which has points
of reference or values outside those of civic society. However, I express no
final view as to the meaning of "religion" for the purposes of article 9(1) as
the capacity of the appellants' beliefs to be religious beliefs has not been
challenged.
- In any given case there may also at this stage
be a question of fact as to whether the beliefs found at the first stage do in
fact form part of the belief system identified as a religion at the second
stage, but there is no issue of that nature here. Likewise, issues of fact may
be involved in the process of determining whether the acts of the state have
actually interfered with the applicant's beliefs (see the Valsamis
below) or whether particular acts actually express the applicant's belief for
the purposes of the Arrowsmith test, to which I refer below. These
latter questions, however, are separate from the question presently under
consideration, namely whether an applicant has a religious belief for the
purposes of article 9.
- As I have explained, Elias J in the present
case decided was that a belief in corporal punishment was not capable of
forming a religious belief for the purposes of the Convention because it was
not a central tenet of the appellants' beliefs. In my judgment, this
conclusion does not mean that the belief cannot be a religious belief for the
purposes of article 9. A court can say that a particular person does not hold
a religious belief. It can also say that a particular belief does not form
part of the belief system of a particular religion. These are unexceptionable
factual enquiries. However, in my judgment, there is no mandate for reading
into the Convention, as the judge did, a distinction between "articles" of
faith and other religious beliefs. There is no such distinction in the
Convention. The question whether a belief is an inessential requirement of a
faith is relevant to the application of the Arrowsmith case (see
below), not to the question whether the belief is a religious belief.
- That point leads to another point. A belief is
not incapable of being a religious belief simply because the same belief, if
held by a non-adherent, would not be a religious belief. It is for that reason
that I disagree with Buxton LJ's proposition (judgment, paragraph 33) that
"the infliction of corporal punishment expresses nothing as to the religion of
the inflicter". That issue has to be judged in the light of the inflicter's
beliefs, not by disregarding them.
- However, there are forms of belief, religious
and otherwise, that are not desirable in a democratic society and there are
others which are even harmful to society. Accordingly, I would accept Mr
Diamond's submission that 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. The judge had not minded to accept
that there should be any limit on religious beliefs that could be recognised
(judgment, paragraph 58). On this I would for the reasons just given disagree
though I would accept that the conditions for recognition must not be set at a
level which would deprive minority beliefs of the protection that they are
obviously intended to have under the Convention.
- It has not been suggested that the belief of
the appellants in the present case would fail to meet those criteria, other
than compatibility with human dignity. That objection is primarily based on
the disclaimer of approval by the Strasbourg court in the
Costello-Roberts case. I have already dealt with that point. It seems
to me to be an over-generalisation to say that all physical chastisement will
always be incompatible with human dignity. It is clear that these appellants
take very great care to consider the child's interests and apply correction
for the purpose of reconciliation and forgiveness. As I have said, I do not
consider that their religious belief is automatically to be treated as
unworthy of protection because it entails physical contact and there is no
evidence put forward by the Secretary of State that this form is in fact
harmful to a child.
- It follows that I do not consider that a
religious belief can be disregarded simply because in some other cultures the
same practice would be regarded as part of a social or economic tradition. The
appellants say that correction is part of their religious belief. It is part
of their religious duty to bring up children in the fear of God and this
involves inculcating respect for authority. Indeed, it is one of the Ten
Commandments in the Old Testament of the Bible that children shall honour
their parents. This commandment is part of the duty to God. In other cultures,
the principle of authority might simply be seen as part of good social order,
but that does not mean to say that it is open to the court to recharacterise
the belief of the appellants as not being a religious belief in their case.
- In the present case, there is no issue as to
the appellants' motivation in seeking to apply or authorise correction. It is
accepted that they do so as a result of their beliefs. The Secretary of State
does not challenge the genuineness of their beliefs. In my view, to establish
a relevant religious belief, it is sufficient for the appellants to show, as
they have shown, that their belief in correction genuinely forms part of their
religious beliefs, and that that belief fulfils the criteria mentioned above.
In this I am in principle in agreement with Rix LJ. The appellants can also
show that an act for which the State is responsible, namely the maintenance of
a prohibition on corporal punishment in schools, impinges on those beliefs.
The next question is whether the State's action violates the qualified right
conferred by article 9(1), namely the right of a person "to manifest his
religion or belief, in worship, teaching, practice and observance". It is to
that issue that I now turn.
Interpretation by the Strasbourg organs of the qualified right conferred
by article 9
- I have expressed the view above that the
Strasbourg organs have sought to draw a balance between different sections of
society by placing a restrictive interpretation on the scope of the qualified
right conferred by article 9(1). The authorities show that this has been done,
so far as relevant to this appeal, by holding:
a) that person does not "manifest" his beliefs by practice when
he performs acts which are motivated by his beliefs but do not "actually
express" those beliefs (Arrowsmith v UK (1978) 3 EHRR 218);
b) that a person who can take steps which will avoid any
conflict between his beliefs and those acts which he claims interfere with
those beliefs, or voluntarily accepts a regime which leads to such a
conflict, cannot complain of an interference with his freedom to manifest
his beliefs (see, for example, Kala( v Turkey (1997) 27 EHRR 552 and
Stedman v UK (1997) 23 EHRR CD 329).
- These are distinct lines of jurisprudence but
they are interconnected and interwoven in the case law. They are not unified
by any express organising principle but, as I see it, there is a common
thread. As I read his judgment, Buxton LJ shares that general approach. In my
judgment, the common thread in these separate lines of jurisprudence is the
need to balance the interests of those holding religious beliefs on the one
hand with the interests of those who do not hold those beliefs (or who hold
other beliefs) on the other hand. It is of the essence of a pluralist society
that no group should have dominance over any other group (see above). I do not
intend to suggest that all the case law cited to us is capable of consistent
analysis in terms of the propositions I have set out above, but in my judgment
they support those propositions for the reasons given below. Accordingly, the
right to freedom of thought, conscience and religion cannot be relied upon as
automatically justifying immunity from generally applicable laws.
- I will examine these propositions in turn. The
origin of proposition (a) is Arrowsmith v UK, which has been at the
forefront of the Secretary of State's submissions.
- The relevant complaint in Arrowsmith was
that the complainant's conviction under the Incitement to Disaffection Act
1934 violated her rights under article 9. The complainant was a pacifist. She
distributed leaflets to soldiers inciting opposition to government policy in
Northern Ireland. The pamphlets properly read did not as such express
pacifists beliefs. The European Commission on Human Rights ("the Commission")
held that there was no violation:
"71. The Commission considers that the term "practice" as
employed in article 9(1) does not cover each act which is motivated or
influenced by a religion or belief.
It is true that public declarations declaring generally the idea
of pacificism and urging the acceptance of a commitment to non-violence may
be considered as a normal and recognised manifestation of religious belief.
However, when the actions of individuals do not actually express the belief
concerned they cannot be considered as protected by article 9(1), even when
they are motivated or influenced by it."
- Accordingly, the Arrowsmith case
requires there to be shown that there is a direct link between the relevant
practice and the relevant belief. It follows that it is not enough for a
complainant to show that there is an indirect link and that he has chosen to
do something because of his beliefs: this would then be an act motivated or
influenced by his religious beliefs and not one directly expressing his
belief. The act must be one which his beliefs require him to carry out: on
this point of law, I am in agreement with Buxton LJ (judgment, paragraph 64).
The Arrowsmith test draws a distinction between acts which the beliefs
require to be performed and are integral to those beliefs and acts which are
merely inspired by the beliefs. It is not enough to make the acts
manifestations of religious beliefs that they are motivated or influenced by
the actor's religious beliefs. The further argument, based on article 10, of
the applicant was also rejected in the Arrowsmith case on the basis of
article 10(2). It may be that the Arrowsmith case more naturally falls
under article 10 than under article 9 (see Vereiniguing Demokratischer
Soldaten Österreichs v Austria, (1994) 20 EHRR 56 where the Strasbourg
court found a violation of article 10 with respect to the state's refusal to
distribute a journal aimed at soldiers).
- A person's freedom to manifest his religion may
be involved in (a) the wearing of religious dress (see X v UK (1978) 14
DR 234) where the Commission did not actually decide the point but based its
decision that there was no violation of article 9 on facts bringing the case
within article 9(2)); (b) the observance of dietary laws (see the Jewish
Liturgical Association case, where the Strasbourg court was content to
proceed on the basis of a concession); and (c) the practice of proselytism
(see, for example, Kokkinakis v Greece). In such circumstances the acts
in question actually express religious beliefs and are not merely motivated by
such beliefs. For example, in Kokkinakis v Greece, a Jehovah's Witness
was convicted of proselytism when he sought to persuade another person to
change faith. The Strasbourg court held that a Jehovah's Witness enjoyed the
status of a known religion. Accordingly, a Jehovah's Witness was entitled to
freedom of religion. Moreover,
"Bearing witness in words and deeds is bound up with the
existence of religious convictions ... freedom to manifest one's religion
includes in principle the right to try to convince one's neighbour ..."
(paragraph 31).
- The Arrowsmith case leads to the
question, on the basis that religious motivation is not itself enough to bring
an act within article 9(1), whether to constitute "a practice" an act must in
itself be an action which would generally be regarded as one of a religious
nature. In C v UK (1983) 37 DR 144, the Commission said:-
"Article 9 primarily protects the sphere of personal beliefs and
religious creeds, i.e. the area which is sometimes called the forum
internum. In addition, it protects acts which are intimately linked to
these attitudes, such as acts of worship or devotion, which are aspects of
the practice of religion or belief in a generally recognised
form."
- This passage does not purport to set out an
exhaustive definition of the type of activities which are protected by article
9(1). Moreover, it may be dealing only with worship or observance and not
"practice". Accordingly, I do not read this passage as imposing a limitation
on the meaning of "practice" for the purposes of article 9. I do not,
therefore, read it as meaning that a "practice" must be a practice in a
"generally recognised form". Any such limitation on a practice could only be
ascertained by imposing on a religious activity some majoritarian view as to
what could constitute a religious practice. This would seem to be contrary to
the intention of the Convention which is to protect minority beliefs. If there
were any concern that, without such a limitation, article 9 would otherwise
give protection to undesirable conduct which may adversely affect
non-adherents, I consider the position is adequately safeguarded by
proposition (b) and by the limitation accepted above on the types of religious
beliefs that qualify for protection under the Convention. The position is also
safeguarded by article 9(2). Furthermore, to limit protection under article
9(1) to acts which are not neutral as to their religious content would be to
ignore the point made earlier that many beliefs, and it follows many acts, are
distinguishable as religious beliefs, or it follows, religious practices, only
because of the belief of the actor. Thus a refusal by a person to eat say,
pork, would in my view be a manifestation of a religious belief if it was
contrary to the religious beliefs of the person in question to eat pork. But
it would not be the manifestation of a religious belief if the person refusing
to eat pork was not doing so out of religious conviction. It all turns on the
belief of the person in question. The fact that religious dietary laws have
been held to be protected by article 9, in my view, supports this conclusion.
Moreover, in the example I have given the act of refusal directly expresses
the belief for the purposes of the Arrowsmith test.
- The distinction which Arrowsmith draws
is not between acts which are obviously religious in character and those which
are only religious because of the motivation of the person performing them.
The distinction which Arrowsmith draws is between acts which a person
is actually required by his religious beliefs to carry out, and those which he
is not so required to perform but which are merely influenced, or motivated,
by his religious beliefs. The mere fact that an act, such as a refusal to eat
particular kinds of food, is one which from the external point of view is
neutral as to its religious content does not mean that it cannot constitute
the manifestation of a religious belief and that it acquires a religious
content only if it is motivated by religious belief. The Arrowsmith
test is directed to limiting the Convention right to acts actually required by
religious beliefs, as opposed to those which are merely inspired by such
beliefs.
- In my judgment, there is a perceptible, if
fine, distinction between (1) cases such as X v UK (cited by Buxton and
Rix LJJ) and C v UK (cited above), on the one hand, and (2) cases on
religious dress, dietary laws and proselytism on the other. In X v UK,
a pacifist, and in C v UK, a Quaker, sought exemption from the
obligation to pay taxes which might be used for military purposes. The
applicants claimed that their beliefs required them not to support weapons
procurement directly or indirectly. The Commission held that in each case
there was no violation of article 9(1). The Commission cited Arrowsmith
but based its decisions on the more general proposition that:
"article 9 does not always guarantee the right to behave in the
public sphere in a way which is dictated by … a belief."
In other words, the Commission was influenced by the fact that the acts in
question would affect other members of society. In addition, the Commission
relied on the fact that the complaint related to the obligation to pay tax
which applied to all taxpayers and the fact that the state's right to impose
tax is recognised by article 1 of the First Protocol to the Convention. The
latter point is special to the facts of X v UK and C v UK but
the former point, limiting behaviour in the public sphere, is of wider
application. However, it is not in general applicable to claims to express
religious belief through dress, or the observance of dietary laws, or the
proselytism within its proper bounds. The public is not generally involved in
these matters, though it may be (see, for example, Karaduman v Turkey
(1993) 74 DR 93, where University regulations requiring, as a condition of
issuing diploma certificates, that Muslim undergraduates should provide for
identification purposes, a photograph without a headcovering were held not to
violate article 9(1)).
- I now turn to my proposition (b). The
authorities show that those seeking to assert article 9(1) rights must
consider their individual position. Thus the Strasbourg court has held that
where a judge advocate in the Turkish air force had been required to retire
from the air force because of his conduct and attitude to Muslim
fundamentalism in breach of military discipline, there was no violation of
article 9(1) (Kala( v Turkey (1997) 27 EHRR 552). The Strasbourg court
held that:
"in exercising his freedom to manifest his religion, an
individual may need to take his specific situation into account." (paragraph
27).
- When the applicant joined the air force he
necessarily accepted military discipline. The Strasbourg court noted that the
applicant was permitted to fulfil the normal duties of a Muslim, such as
praying five times a day. Again, the Commission has held that, where an
employee has been required to work on a day on which it would be contrary to
her religious beliefs to work, her article 9(1) rights were not violated
because it was open to her to resign her position (Stedman v UK; see
also Konttinen v Finland (Application No. 24949/94); and see The
Jewish Liturgical Association case (2000), 9 BHRC 27, at paragraphs 80 –
83). There is a suggestion in Konttinen that Kala... is
authority for the proposition that only normal forms of religious worship or
devotion are protected by article 9(1), but this is not the basis on which
either Kala( or Konttinen was decided and I have already
addressed this point above.
- In the Jewish Liturgical Association,
the applicant organisation, representing a number of Jews in France, were
refused a licence to perform the ritual slaughter of animals. This involves an
exemption from rules requiring animals to be stunned before slaughter. The
applicant contended that ritual slaughter performed by ritual slaughterers who
already had the appropriate licence did not conform to their religious
beliefs. The Strasbourg court rejected the claim that article 9 was violated.
Meat slaughtered in the way members of the applicant organisation required to
meet their beliefs could be obtained by importation or alternatively by
agreement with ritual slaughterers who already had licences and who could
perform the additional rites which members of the applicant organisation
required. The Strasbourg court accepted that the right to observe dietary laws
was part of those members' freedom to manifest their religion:
"73. The court next reiterates that article 9 lists a number of
forms which manifestation of one's religion or belief may take, namely
worship, teaching, practice and observance (see Kala? v Turkey
(Application no. 20704/92) (1 July 1997, unreported) (para. 27)). It is not
contested that ritual slaughter, as indeed its name indicates, constitutes a
rite or 'rite' (the word in the French text of the convention corresponding
to 'observance' in the English), whose purpose is to provide Jews with meat
from animals slaughtered in accordance with religious prescriptions, which
is an essential aspect of practice of the Jewish religion. The applicant
association employs ritual slaughterers and kashrut inspectors who slaughter
animals in accordance with its prescriptions on the question, and it is
likewise the applicant association which, by certifying as glatt kosher the
meat sold in its members' butcher's shops, exercises religious supervision
of ritual slaughter.
74. It follows that the applicant association can rely on
article 9 of the convention with regard to the French authorities' refusal
to approve it, since ritual slaughter must be considered to be covered by a
right guaranteed by the convention, namely the right to manifest one's
religion in observance, within the meaning of article 9."
- However, the Strasbourg court considered that
on the facts there was no interference with that freedom:
"80. In the court's opinion, there would be interference with
the freedom to manifest one's religion only if the illegality of performing
ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from
animals slaughtered in accordance with the religious prescriptions they
considered applicable.
81. But that is not the case. It is not contested that the
applicant association can easily obtain supplies of glatt meat in Belgium
…"
- This line of authority is criticised by some
text including Clayton & Tomlinson, The Law of Human Rights
(Oxford) (2000) at page 973:
"... in exercising his freedom of religion an individual may
need to take his own specific situation into account (Kala? v Turkey
(1997) 27 EHRR 552, para.27) ... It is difficult to see how this
conclusion can be justified: it is strongly arguable that the court should
have found an interference and then gone on to consider "justification"
under article 9(2)." (para.14.46).
- The same point could be made with even more
force about the Jewish Liturgical Association case, above.
- The point made by Clayton & Tomlinson is
important in the present case because, as already stated, the Secretary of
State has not relied on article 9(2). Mr Keith recognises that it is too late
for the Secretary of State to rely on article 9(2) in the present case.
Counsel sought to argue before the judge that section 548 was justified under
article 9(2). The judge gave several reasons for refusing to take this step,
saying:-
"I have no evidence before me as to why it was felt justifiable
to interfere with [any human rights of the parents]. Without such evidence
it is impossible to say whether the response was a proportionate. The court
cannot find justification simply on the basis of counsel's assertion as to
possible grounds which a state might be able to rely on to justify the
provisions in question." (Judgment, paragraph 60).
- In the absence of evidence directed to the
requirements of article 9(2), the Secretary of State does not have a fall-back
position in the event of the court reaching the conclusion that article 9(1)
was violated. The relevant issue would then be whether section 548 of the
Education Act 1996 interfered with the appellants' rights. On the face of it,
section 548 takes no account whatever of religious or philosophical beliefs it
may infringe. In Kokkinakis v Greece, above, there was a criminal
offence imposed on all forms of proselytism and the Strasbourg court held that
the applicant's right was violated because no distinction was drawn between
"proper" and "improper" proselytism. (That distinction is, of course, a
difficult one but the Strasbourg court did not have to grapple with it because
no attempt had been made to draw it by the national court.)
- However, proposition (b) is undoubtedly
established by Strasbourg jurisprudence. On the face of it, proposition (b) is
harsh. However, in my judgment, it is to be justified by the common thread
identified above. I do not, therefore, consider that it is helpful to regard
these cases as a conflation of article 9(2) with the qualified right in
article 9(1). Instead it has to be recognised that a person's freedom to
manifest his religion for the purposes of article 9 is not absolute; it is not
a freedom to practice one's religion in any way a person pleases. The freedom,
being a freedom to be enjoyed in conjunction with others whose interests must
also be safeguarded, is of a negative kind in that it is a freedom to be free
from constraints other than those arising from a set of circumstances that the
complainant has accepted.
- This summary of Strasbourg jurisprudence is not
directed to the case where a constraint is imposed in a discriminatory
fashion, that is on persons only because they are adherents of religion or
adherents of a particular religion. The situation here is that section 548 of
the Education Act 1996 is generally applicable to all teachers. I do not
accept Mr Diamond's submission that because it is partial (in that it does not
for example apply to carers), it is not to be treated on a generally
applicable law. If section 548 were discriminatory, different considerations
would arise.
- I can conveniently deal with another point made
by Mr Diamond, namely that less significance should be attached to section 548
because it was in the relevant respect amendment pursuant to an amendment
proposed by a private member and with little debate. (One of the consequences
of its being a private member's amendment is that there was no requirement for
a ministerial statement of compatibility for the purpose of section 19 of the
Human Rights Act 1998). The fact is that section 548 represents the will of
the democratically elected legislature.
- I turn to another point. Buxton LJ has set out
passages from the judgments of the House of Lords in R (o/a Pretty) v
DPP [2002] 1 AC 800 and of the Strasbourg Court in Pretty v UK (2002) 35 EHRR 1. In that case, the belief relied on was a philosophical belief in
assisted suicide. She claimed that she was entitled to manifest those beliefs
by acting on them. It was not a case where the applicant contended that act in
question was a necessary requirement of her beliefs, and accordingly the
Strasbourg court, upholding the judgments of the House of Lords, held that her
beliefs did not pass the Arrowsmith test (Judgment, paragraph 82). In
my judgment, the Kala? approach would have been inapplicable in her
case. Accordingly, the judgments of the House of Lords and of the Strasbourg
court in the Pretty cases confirm that the Arrowsmith case
remains part of Strasbourg jurisprudence.
- In the light of my conclusions below, it is
unnecessary for me to consider in depth the meaning of the Convention term
"observance" or whether the Arrowsmith test applies to observance as
much as to practice.
Application of the Strasbourg jurisprudence on article 9(1) to this
case
- I next turn to the question of the application
of the Strasbourg jurisprudence summarised above to the facts of this case.
The judge, having cited Arrowsmith held that the appellants' belief on
correction did not constitute a manifestation of a belief for the same reasons
essentially as he gave for holding that it was not a belief at all (judgment,
paragraph 54). I have addressed those reasons above.
- Buxton LJ has also held that the appellants'
imposition of correction constitutes neither a "practice" nor the
manifestation of a belief, as opposition to acts motivated by a belief
(judgment, paragraph 35). The former turns on the lack of clarity in the
appellants' belief. I addressed the question of lack of clarity when dealing
with the appellants' belief at the outset of this judgment. In my judgment,
the imposition of "correction" constitutes no less a "practice" in this case
than the observance of dietary laws, rules as to dress and the practice of
proselytism in those cases where the Strasbourg organs have accepted that a
qualified right under article 9(1) existed. There is no logical or principled
distinction that can be drawn between these various ways in which religious
beliefs are externalised. Unlike the particular pamphlets in
Arrowsmith, the act in question is a specific requirement of the
complainants' religious beliefs. On the basis of the evidence and arguments in
this case, the public sphere is not adversely affected by the practice by the
appellants of their beliefs.
- The argument of Mr Keith was as follows. First,
the appellants failed to show that the correction is an essential aspect of
their religious beliefs. For the reasons already given, I consider that the
appellants have shown that it is part of their religious beliefs that they
have a duty to God to bring up their children using correction in appropriate
circumstances. It is thus not an optional aspect of their beliefs.
- Second, Mr Keith submits that correction is
merely an act which is motivated or influenced by religious beliefs: it does
not actually express those beliefs. I have already found that it is part of
the appellants' religious beliefs that they should apply correction if the
circumstances warrant it. By sending their children to schools providing
education on the express basis of Christian principles conforming with their
own, the appellant parents are evincing their desire that their own duty to
bring up their children in the Christian faith is carried out by the
children's school when the children are at school. The authority which they
seek to give those schools to apply correction, which is authority to
administer correction strictly in conformity with their beliefs, and the
administration of such correction is, in my judgment, part and parcel of the
"practice" by appellants of what they believe for the purposes of article 9.
The question is whether in practising what they believe in this way they would
be recognised as manifesting their beliefs for the purposes of article 9(1).
- Since the appellant parents have established
that their beliefs require them to bring up their children using
correction where appropriate, the Arrowsmith argument does not in my
judgment assist the Secretary of State. In carrying out the upbringing of
their children in accordance with their faith, the appellant parents are
actually expressing their beliefs. The conduct which the appellants claim is a
manifestation of their beliefs does not affect society generally or the public
sphere since the correction would be administered in the home or at school.
These schools are not in the state sector. They have been founded on the basis
of the principles of the beliefs which the appellants hold, and correction is
a matter on which parents of children at the schools and teachers are agreed.
In my conclusion on the Arrowsmith point I am in agreement with Rix LJ,
save with respect to the Liverpool School. The appellant teachers share the
parents' beliefs, but in the present case their role is only as delegates of
the parents and accordingly they cannot have Convention rights if the
appellant parents do not.
- There is one qualification I would make to
this. While the Liverpool School say that delayed correction is "unworkable"
and that immediate correction is therefore "Biblically correct", in the light
of the other evidence I do not myself accept that a system whereby parents
administer correction, either at home or at school, cannot be made to work. In
the case of the Liverpool school, I conclude that their belief in immediate
correction, while a religious belief, is not a non-optional aspect of their
beliefs. On this basis, immediate correction done by a teacher would not be a
"manifestation" of a religious belief within the Arrowsmith test.
- Mr Keith's next argument is that the imposition
of correction would not express any belief at all. It is true that the same
act, if performed by a non-adherent of the appellants' faith, would by its
nature not express any religious belief. However, the fact that, when
performed by the appellants, it is performed in exercise of their religious
beliefs is not a fact which can be ignored in determining whether article
9(1). Accordingly, I would reject this argument also. I consider that the
situation is in this respect indistinguishable from acts which Mr Keith was
prepared to accept as acts expressing religious beliefs, namely the wearing of
turbans and ritual circumcision. These acts (when performed by adherents)
constitute the manifestation of religious belief.
- Mr Keith invites the court to make a value
judgment and hold that the appellants' desire to authorise schools to carry
out correction is not the manifestation of religious belief. This argument
springs not from section 548 of the Education Act 1996, but the trend of
Strasbourg case law in which he submits is moving in the direction of an
outright ban on corporal punishment. In my judgment, this is not an invitation
to which the court should accede. The court should not be tempted to water
down article 9(1) rights by reference to a conclusion which has not yet, and
might never be, reached by the Strasbourg court. I say nothing about the
position if the Secretary of State had chosen to rely on the rights of the
child.
- That leaves proposition (b) above and the
question whether the appellant parents can show there is no choice open to
them which would avoid a conflict between section 548 and their religious
beliefs.
- In the present case, the correction need not be
applied by the teachers. It can be done, as it is at present by the Emmanuel
School, Rochdale and the King's School Senior, Hampshire (bundle, pages 75 and
80), by a parent at the school's request, either at home or at school. Save in
the case of the Liverpool school, that is in accordance with the appellant
parents' religious beliefs. The parents and schools between them can agree on
the way in which correction ought to be carried out so that the aspects of
love and reconciliation are observed when the parent carries out correction
just as much as it would be if the school carried it out. No doubt, it is more
convenient for parents to authorise the school, but convenience alone does not
justify a Convention right.
- The beliefs of the Liverpool school require
that correction be applied immediately and thus in the school context. As
already explained, I do not consider that the Convention right of the teachers
can be wider than that of the parents. So far as parents hold this belief,
then my answer is that the law requires them to make a choice between sending
their children to a school, as opposed to educating their children themselves
at home, and carrying out their religious beliefs in this respect. Harsh
though the application of proposition (b) may seem, in my judgment it is
required by Convention case law. I do not consider that it would be
appropriate to depart from the Strasbourg case law in this respect. Such a
course would be justified only in exceptional circumstances which do not exist
here. The appellants can avoid a conflict between their beliefs and a statute
which is generally applicable and which the democratically elected legislature
has enacted for the good of society.
- For the above reasons, in my judgment, the
appellant parents have failed to show their wish to authorise schools to carry
out correction constitutes an interference with their freedom to manifest
their religious beliefs for the purposes of article 9(1). Had the beliefs been
philosophical, rather than religious, the result would have been the same.
- Article 2 of the First Protocol
- Article 2 of the First Protocol provides:-
"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."
Respect for parents' rights
- I now turn to article 2 of the First Protocol.
If I am correct thus far that the appellants' belief is a religious belief for
the purposes of article 9, it must similarly be a religious conviction for the
purposes of article 2 of Protocol No.1. The issue is then whether or not the
state has failed to give "respect" to their belief. In this context, it is
established that "respect" means more than "acknowledge" or "take into
account" (Valsamis v Greece, above, paragraph 27). As I see it, in
order to respect religious beliefs, the state must not interfere with them to
a disproportionate extent.
- Elias J relied on Valsamis v Greece
(1996) 24 EHRR 294 which Rix LJ has summarised. The decision in that case
that no breach of article 9 was involved turns on the fact that the Strasbourg
court could "discern nothing, either in the purpose of the parade or in the
arrangements for it, which could offend the applicants' pacifist convictions
to an extent prohibited by the second sentence of article 2 of Protocol No.1."
(judgment, paragraph 31). The Strasbourg court relied on this passage in
reaching the conclusion that the obligation to take part in the school parade
was not such as to offend the applicant's parents' religious convictions
(paragraph 37).
- Like Buxton LJ (judgment, paragraph 60), I do
not accept the submission of Mr Keith, which was accepted by the judge
(judgment, paragraphs 52 and 53), that the only way in which the obligation on
the state to respect religious beliefs is broken is if the pupil is subjected
to indoctrination inconsistent with those beliefs. Since article 2 of Protocol
No.1 extends to matters of discipline, as well as those of curriculum content,
indoctrination can be no more than one of the ways in which the obligation on
the state can be broken. Indoctrination was a relevant issue in
Valsamis because the case involved the question whether a sanction
could be imposed by the school for failure to observe curriculum requirements.
- In the present case, a religious belief which,
in my judgment, has been shown is that of the parents. It is their belief that
they have a Christian duty to chastise their children, and to ensure that
their schools chastise them, in appropriate circumstances. So far as the
teachers of their children are concerned, in my judgment, they are concerned
only as delegates of the parents. Even if section 548 on its true construction
forbids delegation by parents of their rights to impose reasonable
chastisement on their children to the teachers of the children, the state has
not acted inconsistently with the parents' belief in so far as the parents can
still impose reasonable chastisement. In addition, the parents can still teach
the child outside school that correction is part of the Christian duty of a
parent.
- The Strasbourg jurisprudence establishes that
the state can regulate the provision of education. By section 548 the state
has sought to regulate the provision of education by prohibiting the
imposition of corporal punishment by teachers, and it has now done so in a
manner which applies equally to all schools.
- Furthermore, under Strasbourg jurisprudence,
the child has a fundamental right to education. It is also established that
parents cannot insist on respect for their convictions if those convictions
conflict with the child's fundamental right to education. Since a child can
only receive education in a school in an environment where corporal punishment
is prohibited, the parents would be denying their children the right to
education if they insisted that their children had to go to schools that would
impose corporal punishment.
- Accordingly, in my judgment, in agreement with
Buxton LJ but in disagreement with Rix LJ, section 548 does not violate
article 2 of the First Protocol.
"philosophical conviction"
- The question arises whether, if the appellants'
belief is not a religious belief, it is nonetheless a "philosophical
conviction" for the purposes of article 2 of Protocol No. 1, but in the
circumstances I can deal with the point briefly. The argument of the Secretary
of State is that a belief in corporal punishment can never be a "philosophical
conviction" for this purpose. This was also the view of the judge. If I am
correct in the views expressed above as to what is a religious belief, then in
my judgment the same beliefs, differing only in the respect that they do not
qualify as "religious", must be capable of constituting "philosophical
convictions", providing that they form part of a belief system that can
properly be described as a philosophy. In this conclusion, I am in agreement
with Rix LJ.
- Section 548 of the Education Act 1996
- Section 548 of the Education Act 1996 (as
amended) provides in material part as follows:
"(1) 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,
or
b) for whom education is provided, otherwise than at school,
under any arrangements made by a local education authority,
or
c) for whom specified nursery education is provided
otherwise than at 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.
(2) Subsection (1) applies to corporal punishment so given to a
child at any time, whether at the school or other place at which education
is provided for the child, or elsewhere.
(3) The following provisions have effect for the purposes of
this section.
(4) Any reference to giving corporal punishment to a child is to
doing anything for the purpose of punishing that child (whether or not there
are other reasons for doing it) which, apart from any justification, would
constitute battery.
(5) However, corporal punishment shall not be taken to be given
to a child by virtue of anything done for reasons that include
averting:
a) an immediate danger of personal injury to,
or
b) an immediate danger to the property
of,
any person (including the child himself).
(6) "Member of staff", in relation to the child concerned,
means:
a) any person who works as a teacher at the school or other
place at which education is provided for the child,
or
b) any other person who (whether in connection with the
provision of education for the child or otherwise):
i) works at that school or place,
or
ii) otherwise provides his services there (whether or not
for payment),
and has lawful control or charge of the child.
(7) "Child" (except in subsection (8)) means a person under the age of 18
…"
- In my judgment, this removes the defence of
justification on one ground, namely the position as teacher (or other staff
member of an educational institution) of the person applying the corporal
punishment. It does not remove the other defences, such as justification on
the grounds of self-defence (this is within section 548(5)).
- The judge's view was that this formula was
sufficient to prevent a defence of justification even where the right to give
corporal punishment did not simply derive from his position as a teacher but
also from express permission given to him by the parents (judgment, paragraph
28). In my judgment, the judge was correct. The case law has already been
examined by Buxton LJ. None of the cases cited to us is authority for the
proposition that delegation between parent and teacher occurs in a purely
contractual sense. The teacher's authority to apply corporal punishment at
common law arose by operation of law. A parent cannot simply by contract
authorise a third party to decide whether, when or how to chastise his child.
That would amount to authority to commit a battery when the third party chose.
If that proposition were not correct, a parent could confer the defence of
justification on anyone, not just a teacher. The authority to apply corporal
punishment under the common law is given to the parent, and he cannot delegate
the discretion to apply it to a third party.
- It may be different if a parent decides that
particular conduct merited a particular form of corporal punishment, no
greater than reasonable chastisement, and then asks a third party to impose
this punishment in his stead. I agree with the judge, however, that the words
"by virtue of his position as such" are wide enough to cover both the case
where the teacher relies on his own inherent authority under the common law
and where a parent authorises the child's teacher to carry out corporal
punishment on a particular occasion because of conduct which offends against
the school's code of behaviour. The teacher in imposing correction would still
be purporting to exercise a right exercisable "by virtue of his position as
such", the only difference being that he does so with the parent's consent. I
need not deal with the situation where a parent asks a teacher to impose
correction on a particular occasion because there is no evidence that that
situation occurs.
- Additional matters
Article 3 of the Convention
- Article 3 of the Convention provides:
"No-one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
- Mr Keith does not submit that the form of
correction sought to be used by the appellants is of itself "degrading ...
punishment" contrary to article 3 of the Convention. In order to violate
article 3, the correction would have to reach "a minimum level of severity"
(Costello-Roberts v UK, above). The assessment of this minimum
level depends on all the circumstances of the case, including the nature and
context of the punishment, the manner and method of its execution, its
duration, its physical and mental effects and in some instances the sex, age
and state of health of the victim (see Costello-Roberts v UK, above).
Accordingly, there is a fact-sensitive line between correction which violates
article 3 and correction which does not do so. However, as I have said, the
Secretary of State has not sought to contend in this case that the particular
form of correction proposed to be used by these appellants would violate
article 3, and, as I have said, no reliance is placed on that as a
justification for State intervention under article 9(2) of the Convention. In
those circumstances, the opinion of the UN Human Rights Committee in General
Comment 7 (1982) on article 7 of the International Covenant on Civil and
Political Rights, that the prohibition (in like terms to article 3) on torture
and cruel, inhuman or degrading treatment or punishment "must extend to
corporal punishment", which Mr Keith draws to our attention, though important,
is not relevant to this case.
Articles 8 and 10 of the Convention
- I agree with Buxton and Rix LJJ about the
application to this case of article 8 and with Buxton LJ on article 10 of the
Convention. I have nothing to add.
Section 13 of the Human Rights Act 1998
- In support of his submission that section 548
did not prohibit correction in this case, Mr Diamond relied on section 13 of
the Human Rights Act 1998, which is set out by Buxton LJ in his judgment. We
have not heard full argument on section 13. The appellants are not a religious
organisation and do not advance this appeal on the basis that they are the
members collectively of any religious organisation. On that basis, section 13
cannot be invoked. Moreover, section 13 applies only if there is a question
under the 1998 Act as to the exercise of a Convention right and I am
doubtful whether on its true interpretation section 13 can apply so as to
produce a different result in this case where under Strasbourg jurisprudence
there has been no interference with the right under article 9 for the reasons
given above. Further, it is possible that section 13 applies only where there
is a conflict between the Convention right of a religious organisation or its
members collectively on the one hand and a Convention or other right of
another person on the other hand (and in the case of conflict with another
person's Convention right, provisionally it seems to me that the court would
be bound pursuant to section 3 of the 1998 Act to construe section 13 itself
so far as possible in a way which is compatible with the Convention rights of
both parties). In this case, the only question for determination under the
1998 Act is whether, pursuant to section 3 of the 1998 Act, section 548 of the
1996 Act is to be interpreted in a way which is compatible with the
appellants' Convention rights under article 9. In the circumstances it is
unnecessary for me to express a final view but my provisional view is that,
since I have held that the appellants have not established violation of a
Convention right under article 9, section 3 of the 1998 Act does not apply and
so for that reason also section 13 does not assist the applicants.
- Accordingly I would dismiss this appeal. In the
circumstances it is unnecessary to deal with the respondent's notice filed by
the Secretary of State, which contains grounds for upholding the judge's
interpretation of section 548 based on its parliamentary history.
