![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] |
|
England and Wales Court of Appeal (Civil Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Williamson & Ors v Secretary of State for Education and Employment [2002] EWCA Civ 1926 (12 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1926.html Cite as: [2003] ELR 176, [2003] QB 1300, [2002] EWCA Civ 1926 |
||
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE ELIAS)
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE RIX
and
LADY JUSTICE
ARDEN
____________________
| Williamson and others |
Appellants | |
| - and - |
||
| The Secretary of State for Education and
Employment |
Respondent |
____________________
Mr Hugo Keith (instructed by The
Treasury Solicitor for the Respondent)
____________________
Crown Copyright ©
Lord Justice Buxton :
Introduction
"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.
The appellants' beliefs and their practices
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.
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.
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.
He who spares the rod hates his son, but he who loves him is diligent to discipline him.
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.
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.
The interests of the parents and of the teachers
"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 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]."
"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
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.
Religious belief as demonstrated by the evidence
Article 9
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.
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.
"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."
"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.
"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.
R (Pretty) v DPP [2002] 1 AC 800
"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."
"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."
"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
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.
Article 2 of the First Protocol
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.
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 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".
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.
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.
"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 principle in Kalac v Turkey and other cases
"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."
Article 8
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
Wider considerations
Disposal of the appeal
Lord Justice Rix:
Introduction
"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."
"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."
"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."
"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."
Corporal punishment at school
The evidence
"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…"
"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."
"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 scope of the debate
"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."
The judgment below
"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 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…".
"such convictions as are worthy of respect in a 'democratic society' and are not incompatible with human dignity"(ibid).
"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."
"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."