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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

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JISCBAILII_CASES_FAMILY

Neutral Citation Number: [2002] EWCA Civ 1926
Case No: 2001/2600

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE ELIAS)

Royal Courts of Justice
Strand,
London, WC2A 2LL
Thursday 12th December 2002

B e f o r e :

LORD JUSTICE BUXTON
LORD JUSTICE RIX
and
LADY JUSTICE ARDEN

____________________

Williamson and others
Appellants
- and -

The Secretary of State for Education and Employment
Respondent

____________________

Mr Paul Diamond and Mr Bruno Quintaville (instructed by Messrs Windsor & Co for the Appellants)
Mr Hugo Keith (instructed by The Treasury Solicitor for the Respondent)

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Buxton :

    Introduction

  1. 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.

  2. 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

  3. 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.

  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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

  13. 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.

  14. 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."
  15. 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.

  16. 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.

  17. 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]."
  18. 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

  19. 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.

  20. 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

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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

  26. 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.

  27. 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.

  28. 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.
  29. 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.
  30. 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.

  31. 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."
  32. 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.

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. 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.

  39. 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.

  40. 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

  41. 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.

  42. 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."
  43. 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."
  44. 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.

  45. 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.

  46. 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

  47. 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.

  48. 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.

  49. 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

  50. 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.

  51. 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.

  52. 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."
  53. 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".
  54. 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.

  55. 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.

  56. 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.

  57. 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.

  58. 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.

  59. 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.

  60. 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.

  61. 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?

  62. 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.

  63. 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.

  64. 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.

  65. 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.

  66. 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.

  67. 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"
  68. 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.

  69. 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.

  70. 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.

  71. 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

  72. 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.

  73. 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.

  74. 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."
  75. 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.

  76. 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.

  77. 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.

  78. 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.

  79. 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

  80. 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.

  81. 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.

  82. 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

  83. 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.

  84. 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

  85. 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

  86. 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

  87. 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.

  88. 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."
  89. 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."
  90. 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."
  91. 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.

  92. There are three points I would like to make by way of introduction.

  93. 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."
  94. 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.

  95. 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.

  96. 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.

  97. 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.

  98. 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.

  99. 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

  100. 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.

  101. 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.

  102. 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

  103. 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.

  104. 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…"
  105. 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."
  106. 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."
  107. 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.

  108. I shall refer to further evidence specifically relating to the non-interference point at paras 184/188 below.

  109. 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

  110. 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."
  111. 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.

  112. 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.

  113. 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.

  114. 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.

  115. 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.

  116. 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

  117. 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?"
  118. 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…".
  119. 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).
  120. 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."
  121. 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".

  122. 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."
  123. 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.

  124. 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" o