School Rules, OK!

Yesterday, the House of Lords decided Begum v Denbigh High School [2006] UKHL 15 (22 March 2006), a case that has some bearing on how a provision commonly found in Bills of Rights is to be understood.

The relevant provision in New Zealand is s 5 of the Bill of Rights:

5. Justified limitations – Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In Begum, the interpretation of article 9 of the ECHR was in issue, and it can be seen that art 9.2 corresponds to s 5 of NZBORA:

Freedom of thought, conscience and religion
9.1 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.
9.2. 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 . . . for the protection of the rights and freedoms of others.”


The difference in wording is immaterial, because neither s 5 nor art 9 seeks to establish a set of procedural steps that courts must apply in deciding whether limitations on rights are justified.

Lord Bingham, at para 31, emphasised that what matters is the practical outcome (ie whether a rule is an unjustified limitation of a right), not the quality of the decision making process that led to it (ie not, on the facts of this case, whether the school authorities reasoned correctly when they decided upon the rule).

Lord Hoffmann agreed, saying at para 68:

” … article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law.”
 
Begum suggests that a formalistic approach to the decision, about whether a right has been subject to unjustified limitation, is inappropriate, and that it is the practical outcome that matters. In Begum the school rule that proscribed the wearing of religious clothing was held, in the particular circumstances of this case (it is important to recognise that the Law Lords were not usurping Parliament’s power by seeking to rule on the validity of legislation that gave the power to make rules to the governing body of each school), not to be an unjustified limitation of the right to express religious belief. The school in question had carefully considered its rule about uniforms, in the context of the composition of its roll and the views of the community it served. Lord Bingham concluded, para 34:

“On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent’s request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision.”

In Hansen, blogged here 19 September 2005, alternative interpretations of a section that has a limiting effect on the presumption of innocence are under consideration. The Begum approach would look at the practical outcome of each. One would require an accused to establish innocence on the balance of probabilities. This is a serious limitation on the presumption of innocence. In the absence of any evidence that Parliament deliberately intended (ie intended after deliberation) that that limitation should be imposed, the alternative interpretation, that the section requires the accused to raise a reasonable doubt about his guilt, should be preferred. In deciding whether Parliament intended the more limiting meaning, it must be relevant to note that when the section was recently re-enacted, there was no Report from the Attorney-General to the effect that the provision appears to be inconsistent with any of the provisions of NZBORA, as is required by s 7. In the absence of an express parliamentary intention to limit the presumption of innocence, the courts should not impose such a limitation through interpretation.

On this approach, s 5 works as a guide to Parliament when it considers legislating to limit rights. This point was made by the Chief Justice in argument during the Supreme Court hearing in Hansen v R. It also reminds courts engaged with provisions that may impinge on rights to look for indications of legislative intent to limit rights.

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