The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner.
Held: The appeal was dismissed. For Article 9 to be engaged (aside from certain other threshold conditions) the manifestation of belief relied on must be intimately linked to the belief concerned. ‘Religious liberty, they say, requires that parents should be able to delegate to schools the ability to train children according to biblical principles. In practice the corporal punishment of boys takes the form of administering a thin, broad flat ‘paddle’ to both buttocks simultaneously in a firm controlled manner. Girls may be strapped upon the hand. The child is then comforted by a member of the staff and encouraged to pray. The child is given time to compose himself before returning to class. There is no question of ‘beating’ in the traditional sense. ‘Smacking’ would be closer to the mark.’ They had been appointed as agents of the parents, and purported to deliver that discipline not as teachers but in loco parentis.
Held: The argument that the teachers were acting as agents for the parents was untenable. ‘article 9 safeguards freedom of religion. This freedom is not confined to freedom to hold a religious belief. It includes the right to express and practise one’s beliefs. Without this, freedom of religion would be emasculated. Invariably religious faiths call for more than belief. To a greater or lesser extent adherents are required or encouraged to act in certain ways’ and was given special mention in the 1998 Act. Not every act of physical punishment would infringe a child’s article 9 rights, and therefore a full ban required justification. The rights protected under Article 2 were those of the parent not of a teacher. Lord Nichols: ‘I am in no doubt this interference is, within the meaning of article 9, ‘necessary in a democratic society . . for the protection of the rights and freedoms of others’. The statutory ban pursues a legitimate aim: children are vulnerable, and the aim of the legislation is to protect them and promote their wellbeing. Corporal punishment involves deliberately inflicting physical violence. The legislation is intended to protect children against the distress, pain and other harmful effects this infliction of physical violence may cause.’ Limits on Convention freedoms must fulfil three well-known criteria: (1) they must be prescribed by law; (2) they must pursue a legitimate aim; and (3) they must be necessary in a democratic society.’ The ‘notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.’ ‘it is quite impossible to say that Parliament was not entitled to limit the practice of corporal punishment in all schools in order to protect the rights and freedoms of all children.’
Lord Nicholls said: ‘Religious and other beliefs and convictions are part of the humanity of every individual. They are an integral part of his personality and individuality. In a civilised society individuals respect each other’s beliefs. This enables them to live in harmony. This is one of the hallmarks of a civilised society. Unhappily, all too often this hallmark has been noticeable by its absence.’ and
‘a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this prerequisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual’s beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention . . in deciding whether… conduct constitutes manifesting a belief in practice for the purposes of article 9 one must first identify the nature and scope of the belief. If… the belief takes the form of a perceived obligation to act in a specific way, then, in principle, doing that act pursuant to that belief is itself a manifestation of that belief in practice. In such cases the act is ‘intimately linked’ to the belief, in the Strasbourg phraseology.’
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2005] UKHL 15, Times 25-Feb-2005, [2005] 2 WLR 590, [2005] 2 AC 246, [2005] 2 All ER 1, [2005] ELR 291, [2005] 2 FLR 374, [2005] 1 FCR 498
House of Lords, Bailii
Education Act 1993 293, Children Act 2004 58, Day Care and Child Minding (National Standards) (England) Regulations 2003 SI 2003/1996 5, Education Act 1996 548, European Convention on Human Rights 9, Human Rights Act 1998 13(1)
England and Wales
Citing:
Cited – Z And Others v The United Kingdom ECHR 10-May-2001
Four children complained that, for years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering ‘appalling’ neglect in the home of their . .
Cited – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Cited – Costello-Roberts v The United Kingdom ECHR 25-Mar-1993
‘Slippering’, a punishment by hitting a child with a slipper, when used as part of school discipline was not a degrading punishment under the convention. Conduct must attain a minimum level of severity to engage the operation of the Convention. . .
Cited – Regina (Williamson and Others) v Secretary of State for Education and Employment Admn 15-Nov-2001
A genuine religious belief which supported the use of corporal punishment in schools was not itself either a manifestation of religious belief which required protection under the convention, or a religious and philosophical conviction for the . .
Appeal from – Regina (Williamson and Others) v Secretary of State for Education and Employment CA 12-Dec-2002
The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal . .
Cited – Arrowsmith v United Kingdom ECHR 12-Oct-1978
(Commission) Article 9 is apt to include a belief such as pacifism, which could be a philosophy. However, Miss Arrowsmith distributed leaflets to soldiers, urging them to decline service in Northern Ireland. This was dictated by her pacifist views. . .
Cited – Syndicat Northcrest v Amselem 30-Jun-2004
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs . .
Cited – Metropolitan Church Of Bessarabia And Others v Moldova ECHR 13-Dec-2001
‘in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the state of the legitimacy of religious beliefs or of the manner in which these are expressed’ . .
Cited – Kalac v Turkey ECHR 1-Jul-1997
In exercising his freedom to manifest his beliefs an individual ‘may need to take his specific situation into account.’ ‘The Commission recalls that the expression ‘in accordance with the law’, within the meaning of Article 9(2), requires first that . .
Cited – Leyla Sahin v Turkey ECHR 29-Jun-2004
(Grand Chamber) The applicant had been denied access to written examinations and to a lecture at the University of Istanbul because she was wearing an Islamic headscarf. This was prohibited not only by the rules of the university but also by the . .
Cited – X v Italy ECHR 1976
Complaints were made under articles 9, 10 and 11 by persons convicted of reorganising the Fascist Party in Italy. . .
Cited – Jewish Liturgical Association Cha’are Shalom Ve Tsedek v France ECHR 27-Jun-2000
The applicants, ultra-orthodox jews, challenged the regulation of ritual slaughter in France, which did not satisfy their exacting religious standards.
Held: The applicants’ right to freedom of expression was not limited by the controls on the . .
Cited – Martin v Mackonochie Carc 1866
Whether beliefs of the Bishop of Holborn were ‘Romish’. . .
Cited – Martin v Mackonochie PC 1882
The Board sat with ecclesastical assessors to examine whether the religious beliefs of the Bishop of Holborn were Romish. . .
Cited – Bowman v Secular Society Limited HL 1917
The plantiff argued that the the objects of the Secular Society Ltd, which had been registered under the Companies Acts, were unlawful.
Held: The House referred to ‘the last persons to go to the stake in this country pro salute animae’ in 1612 . .
Cited – Hoffmann v Austria (Case No 15/1992/360/434) ECHR 27-Jul-1993
It was a breach of the Convention when parental rights were refused to Jehovah’s Witnesses with regard to the right to refuse to accept a blood transfusion.
Hudoc Judgment (Merits and just satisfaction) . .
Cited – In re South Place Ethical Society 1980
The court considered the meaning and nature of religious belief, and whether a trust for this purpose could be charitable.
Held: Dillon J referred to Russell LJ as having taken the view that the court could hold that there are purposes ‘so . .
Cited – Re O (A minor) (Medical Treatment) FD 12-Apr-1993
The local authority applied for a care order in relation to the child, on the ground that there was an urgent and continuing need for medical treatment which included blood transfusions. The court considered the legal effect of a parent’s belief (as . .
Cited – Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) 27-Oct-1983
(High Court of Australia) Meaning of religion – scientology church application for tax exemption. The trend is towards a ‘newer, more expansive, reading’ of religion. However ‘Religious conviction is not a solvent of legal obligation.’
High . .
Cited – Young, James and Webster v The United Kingdom ECHR 13-Aug-1981
Employees claimed religious objections to being obliged to members of a Trades Union.
Held: It is the obligation of states which have ratified the Convention to secure to everyone within their jurisdiction the rights and freedoms which it . .
Cited – X and Church of Scientology v Sweden ECHR 1979
The church of scientology was a commercial organisation, and a restriction on it advertising was a restriction on its commercial freedom, not on the freedom of religion. . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Christian Education South Africa v Minister of Education 18-Aug-2000
(Constitutional Court of South Africa) The court considered a ban on corporal punishment in schools in a religious context: ‘Though there might be special problems attendant on undertaking the limitations analysis in respect of religious practices, . .
Cited – El Al Israeli Airlines Ltd v Danielowitz 1994
(Israel) A free society respects individual differences, and ‘Only the worst dictatorships try to eradicate those differences.’ . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – Hendricks v Netherlands ECHR 1983
(Commission) In the context of article 8 the rights and freedoms of the child include his interests. ‘The Commission has consistently held that, in assessing the question of whether or not the refusal of the right of access to the non-custodial . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
Cited by:
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Boughton, Regina (on the Application Of) v Her Majesty’s Treasury Admn 25-Jul-2005
The applicants sought to control the sums they paid by way of taxation so as not to contribute to non peaceful objects.
Held: Both English law and human rights jurisprudence would prevent the claim, and the application for a review failed. . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – X, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
Cited – Suryananda, Regina (on the Application of) v The Welsh Ministers Admn 16-Jul-2007
The claimants, trustees of a Hindu temple, sought judicial review of a decision that a bullock in their temple should be slaughtered having positively reacted to a test for bovine tuberculosis bacterium. They said that the animal posed no threat . .
Cited – Watkins-Singh, Regina (on the Application of) v The Governing Body of Aberdare Girls’ High School and Another Admn 29-Jul-2008
Miss Singh challenged her school’s policy which operated to prevent her wearing while at school a steel bangle, a Kara. She said this was part of her religion as a Sikh.
Held: Earlier comparable applications had been made under human rights . .
Cited – Countryside Alliance and others, Regina (on the Application of) v Attorney General and Another HL 28-Nov-2007
The appellants said that the 2004 Act infringed their rights under articles 8 11 and 14 and Art 1 of protocol 1.
Held: Article 8 protected the right to private and family life. Its purpose was to protect individuals from unjustified intrusion . .
Cited – Ghai v Newcastle City Council Admn 8-May-2009
The claimant argued that the restrictions on open air cremations as required by his Hindu belief was unreasonable and infringed his human rights.
Held: The burning of a body otherwise than at a crematorium was a criminal offence. The claimant . .
Cited – McFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Cited – Hall and Another v Bull and Another Misc 4-Jan-2011
(Bristol County Court) The claimants, homosexual partners in a civil partnership, sought damages after being refused a stay at the bed and breakfast hotel operated by the defendants, who said that this was their home, and that they were committed . .
Cited – Bashir, Regina (on The Application of) v The Independent Adjudicator Admn 25-May-2011
The prisoner was a muslim and fasting as part of his religious observance. He sought judicial review of a decision that he was in breach of the Rules when unable to provide a urine sample for a drugs test. He would have had to break his fast to . .
Cited – Bull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
Cited – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – Regina v D(R) Misc 16-Sep-2013
Crown Court at Blackfriars – the court was asked to what extent a witness wanting, from religious conviction, to hide her face with the niqaab form of Islamic dress should be allowed to do so, whilst giving evidence.
Held: The court considered . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Harron v Dorset Police EAT 12-Jan-2016
EAT DISABILITY DISCRIMINATION
RELIGION OR BELIEF DISCRIMINATION
The Claimant had a belief (which the Employment Tribunal thought genuine) that public service was improperly wasteful of money. He . .
Cited – Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School CA 13-Oct-2017
Single Sex Schooling failed to prepare for life
The Chief Inspector appealed from a decision that it was discriminatory under the 2010 Act to educate girls and boys in the same school but under a system providing effective complete separation of the sexes.
Held: The action was . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Education, Torts – Other
Leading Case
Updated: 10 November 2021; Ref: scu.222992