In a guest post, Russell Sandberg is critical of the recent judgment in Michaela School…

The media reports of the last few months highlight how controversial and charged the decision in R (on the Application of TTT) v Michaela School [2024] EWHC 843 (Admin) is. There is much to unpack and debate about the High Court’s 83-page judgment, not least how the secular approach held to be lawful in the judgment sits with a legal framework that continues to favour Christianity in terms of laws on collective worship and the teaching of religion in school.

Frank Cranmer’s case note on the decision superbly summarises the facts, the various grounds argued and the main findings of the detailed judgment. This post, by contrast, focuses on one particular issue: how the Article 9(1) religious freedom argument was understood and elucidated by Linden J. It focuses on the articulation of principle and how that is likely to be problematic for Article 9 claims going forward. The focus here is not upon whether the case was correctly decided but rather on the articulation of the legal position in the judgment.

This post argues that a restrictive interpretation was incorrectly made of the question of whether there was an interference under Article 9. This may be used to defeat future claims without even engaging with the question of justification. At the very least, this means that litigants will be well-advised to argue under the Equality Act rather than Article 9. However, there is a risk that the decision and its reporting may well put off challengers entirely.

 The question of interference under Article 9

Linden J’s elucidation of Article 9 begins in the familiar way: Article 9 is dissected and it is stressed that the Article does not only relate to religious beliefs (paras 131-133). Significantly, Linden J refers to R (Williamson) v Secretary of State [2005] UKHL15 and R (Begum) v Governors of Denbigh High School [2006] UKHL 15 as the two leading Article 9 cases in this jurisdiction. He correctly states that, although a court may determine whether a belief is genuinely held, it is not for the courts to determine whether a belief is genuine (para 134). Further:

‘Evidence about the doctrines and teachings of Islam … is relevant insofar as it throws light on whether a claimant’s professed belief is genuinely held. But the court is not required to assess whether the Claimant’s understanding of Islam is correct or well founded’ (para 135).

Linden J also correctly stated that a religion or belief must meet some modest requirements to be protected under Article 9, citing Williamson and, interestingly, the Strasbourg decision in Eweida v United Kingdom (2013) 57 EHRR 8 for this proposition (para 136). Linden J noted that the school admitted that performing Duhr during the allotted window of time was a manifestation of the Claimant’s religious beliefs (para 139).

This could and should have been the end of the High Court’s consideration of the question of interference under Article 9(1), moving attention to the consideration of the facts and the application of the question of justification under Article 9(2). Unfortunately, this was not the case. Rather, there follows a lengthy discussion of what is rather clumsily termed ‘“Limitation” of/interference with the freedom to manifest one’s religion or beliefs’.

Linden J noted that the school contended that the ban on prayers did ‘not materially “limit” (see Article 9(2)), or interfere with, the Claimant’s freedom to manifest those beliefs’ (para 140). This conflates and confuses the question of whether there is an interference under Article 9(1) with the question of whether the limitation imposed was justified under Article 9 (2). It seems counterintuitive to argue that a ban on ritual prayers was not a limit and, thankfully, this is not a point explored in the judgment.

Rather, the focus is on whether there was an interference, invoking what has been referred to in the academic literature as the ‘specific situation rule’: the idea that if someone voluntarily accepts a specific situation that limits their Article 9 rights then this will not amount to an interference if they can manifest their religion elsewhere. So, an employee who agrees to a contract of employment that includes working on their holy day cannot subsequently claim interference with their Article 9 rights because they chose that job and could similarly decide to work elsewhere.

The discussion of the specific situation rule is introduced with the assertion that ‘until more recently the caselaw of the European Court of Human Rights has adopted a restrictive approach to the question whether there has been a limitation of a person’s freedom to manifest their beliefs’ (para 141). Extracts from the House of Lords judgment in Begum are then given which applied the rule to hold that ‘there had been no limitation placed by a school on the freedom of a female Muslim pupil to manifest her religious beliefs’ by requiring a uniform policy that did not permit the claimant to wear a jilbab because  ‘the claimant’s family had made a free and informed choice to send her to this particular school, knowing of its uniform policy, and she was able to move to another school where the wearing of the jilbab was permitted if she wished to manifest her religious beliefs in this way’ (para 145). This, however, strangely refers to limitation where the extracts quoted refer to interference, omits to mention that this was not the unanimous reasoning of the House of Lords and highlights that the specific situation rule applied to the education context focuses on the choice of the parents rather than the child.

The Strasbourg decision in Eweida is then cited for the recognition of this specific situation rule (para 146) before Linden J correctly noted that:

‘In an apparent change of approach, however, the Strasbourg Court went on to say that the better approach would be to hold that the possibility of an employee changing job or employer should be weighed in the overall balance when considering whether or not the restriction was proportionate On the basis of Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 at [43], however, Ms Hannett  [Counsel for the claimant] conceded that the approach to the question of interference in Begum is binding on me.’ (para 147).

Even if it is correct that the High Court is bound by Begum and cannot consider Eweida (a point I will return to below), it is noticeable that Linden J’s formulation of the specific situation rule goes further than that articulated in Begum. Counsel for the claimant correctly cited Lord Bingham in Begum as requiring that there must be both voluntary acceptance and other means open to manifest the religious belief without undue hardship or inconvenience (para 148).  Ms Hannett argued that this meant that the rule did not apply where the ban was imposed after the person had enrolled (para 149).  Linden J, however, listed a number of Strasbourg decisions from the 1990s cited by Lord Bingham in Begum to conclude that the principle is not as narrow as this (para 150). Linden J  held that the rule applied ‘whether or not the precise limitations are known to the claimant at the moment of joining, and whether or not limitations which are known at the time of joining only become an issue later on as a result of decisions which the claimant takes after joining’ (para 151). Moreover, he noted that ‘the Strasbourg caselaw, pre Eweida, also demonstrates that the fact that there are other means open to a person to practise their religion … will mean that there has been no interference with that freedom for the purposes of Article 9’ (para 152).  He held that:

‘The essence of this aspect of the principle identified in Begum is that if the individual has a genuine choice … to manifest their beliefs elsewhere there will be no interference with their Article 9 rights’ (para 155).

This would mean that Article 9 would rarely if ever apply in an education or employment context. There is always a choice to go to another school or get another job. How realistic that choice is does not seem to be a consideration. The claimant in this case regarded the teaching at the school to be excellent and did not think that she ‘would be able to access such a high standard of education elsewhere in her area’ and that ‘a move would be very disruptive to her education’ (para 173). These considerations were mentioned in the judgment but quickly dismissed.

Linden J did not note that the cases cited by Lord Bingham in Begum all concerned adults who had chosen jobs or to study at a particular university.  A child attending school is in a very different position. Not only is the choice of school a matter for their parents or guardians, but it is also the case that as the child matures their own religion or belief is likely to develop or change.

The specific situation rule would mean that religious practices in schools could not be questioned on human rights grounds: the child can always go to another school. This would equally apply to the parents of a non-religious child who are forced by circumstance to send their children to a faith school.  The law relating to schools with a religious character provides parental opt-outs for this very situation. Yet any Article 9 challenge could easily be defeated. Other advances in recent years where the absence of humanists on SACREs and the lack of recognition of humanist wedding ceremonies have been held to breach Article 9 are unlikely to have succeeded had the specific situation rule been applied.

On the Article 9(1) point, Linden J concluded that there had not been an interference with the claimant’s Article 9 rights. He held that ‘this might appear to some to be a surprising conclusion but in my view it is consistent with the pre Eweida caselaw of the Strasbourg Court’ (para 175).  It is very surprising that the High Court was content to apply the old Strasbourg jurisprudence on this point. There were good reasons why Strasbourg departed from the specific situation rule in Eweida. This raises the question of whether the lower courts are bound to follow Begum rather than considering Eweida.

The Begum precedent

Linden J held that the Begum approach to the question of interference in Begum was binding on him due to paragraph 43 in Kay v Lambeth London Borough Council [2006] UKHL 10 (para 147).  Kay was concerned, in part, with the alleged inconsistency between the House of Lords decision in Harrow London Borough Council v Qazi [2003] UKHL 43 and the Strasbourg decision in Connors v United Kingdom [2004] 40 EHRR 189.

Lord Bingham’s judgment in Kay included a section on ‘Precedent’ where his Lordship discussed the question of ‘whether a court which would ordinarily be bound to follow the decision of another court higher in the domestic curial hierarchy is, or should be, no longer bound to follow that decision if it appears to be inconsistent with a later ruling of the Court in Strasbourg’ (para 40).  He rejected the submission that a ‘lower court should be entitled to depart from an otherwise binding domestic decision where there is a clearly inconsistent subsequent decision of the Strasbourg Court on the same point’ (para 41).  In paragraph 43, the paragraph cited by Linden J, Lord Bingham held that:

‘It will, of course, be the duty of judges to review Convention arguments addressed to them, and if they consider a binding precedent to be, or possibly to be, inconsistent with Strasbourg authority, they may express their views and give leave to appeal, as the Court of Appeal did here. Leap-frog appeals may be appropriate. In this way, in my opinion, they discharge their duty under the 1998 Act. But they should follow the binding precedent, as again the Court of Appeal did here’.

It can be questioned, however, whether the Begum statements on the specific situation rule constitute a ‘binding precedent’ in this sense.  The House of Lords in Begum was considering whether the appellants had unlawfully excluded Begum

‘from that school, unjustifiably limited her right under Article 9 of the European Convention on Human Rights to manifest her religion or beliefs and violated her right not to be denied education under article 2 of the First Protocol to the Convention’ ([2006] UKHL 15, para 1).

The Court of Appeal had found that Begum had been unlawfully excluded and that it had ‘unlawfully denied her the right to manifest religion’ because it did not adopt a Convention-compliant decision-making structure ([2005] EWCA Civ 199, paras 75 and 78). The House of Lords, in allowing the appeal unanimously, agreed that the Court of Appeal’s judgment rested on a mistake: public authorities must not act in a way that is incompatible with the Convention but this does not require such bodies themselves to adopt a proportionality approach to the structuring of their own decision-making.

It is questionable, therefore, whether the ratio of Begum is that there was no breach of Article 9 because of the specific situation rule.  The majority of their lordships applied the rule to hold that there was no interference but they nevertheless explored the question of justification. Lord Bingham even stated that, although on ‘endeavouring to apply the Strasbourg jurisprudence in a reasonable way’ he was of the opinion that there was no interference, the fact that Lord Nicholls and Lady Hale inclined to a different position meant that ‘this is a debatable question, which gives the issue of justification under article 9(2) particular significance’ (para 25). This would suggest that the ratio of Begum was that there was no violation of Article 9 contrary to the reasoning of the Court of Appeal as to proportionality, not that the specific situation rule applied.

It is true that many judgments following Begum cited and applied the specific situation rule but it is not clear that they were bound to do so. Like Lord Bingham, these courts were seeking to apply the Strasbourg case law as they understood it which then included the specific situation rule.  This is shown by the fact that some Article 9 cases succeeded domestically and the specific situation rule was not applied in those cases.

Most notably in R (on the Application of Bashir) v. The Independent Adjudicator and HMP Ryehull and the Secretary of State for Justice [2011] EWHC 1108 (Admin), a case concerning a prisoner (a textbook example of where the specific situation rule would apply) the judge held that ‘the sole issue that arises in the circumstances of this case is … whether the interference is prescribed by law, has one of the legitimate aims identified in Article 9(2) and is proportionate’ (para 23).  The fact that lower courts felt not bound by the Begum articulation of the specific situation rule, even before the Strasbourg decision in Eweida, questions whether the Begum case is ‘binding precedent’ on that Article 9(1) point.

Moreover, it is questionable whether the relationship between Begum and Eweida is comparable to that between Qazi and Connors.  Eweida does not question whether Begum was correctly decided: it simply summarised and altered the Court’s assessment of the general principles that apply in relation to Article 9.  The discussion of the specific situation rule is found in a section of the judgment on general principles, and the Court cited Begum to confirm that the articulation of the specific situation rule by the House of Lords is an accurate summary of the Strasbourg court’s case law ((2013) 57 EHRR 8, para 83). It then concludes that ‘the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate’. In deciding that there was a breach of Article 9 in relation to Eweida, the Court based its reasoning on grounds of proportionality under Article 9(2). The decision did not hinge on the interpretation or application of the specific situation rule.

The idea that the revised interpretation of general principles in Eweida cannot be applied by domestic courts because of Begum is questionable.  Indeed, a whole raft of domestic judgments have cited and applied Eweida without thought being given as to whether Begum remains binding in the way that Linden J assumed.  Indeed, the Eweida rejection of the specific situation rule has been accepted and followed by domestic courts. The Supreme Court in Bull v Hall [2013] UKSC 73 stated that in Eweida, ‘the Strasbourg court abandoned its previous stance that there was no interference with an employee’s right to manifest her religion if it could be avoided by changing jobs’ and that this was now to be taken into account in the overall proportionality assessment (para 47).  It is unclear why Linden J did not follow the clear example of the Supreme Court on this issue.

Concluding thoughts

There is a great deal to unpack in the Michaela judgment and the facts that led to it. The court considered whether the ban imposed by the school in these particular circumstances was unlawful. This judgment in favour of the school does not mean that it is good practice.  It points to the need for guidance and reform of the law relating to religion in schools.

The restrictive interpretation and disposal of Article 9(1) in this case should be of wider concern. This post has argued that applying the specific situation rule is not only a surprising decision; it is also an incorrect one. It renders Article 9 toothless meaning that human rights challenges in the employment and education contexts and perhaps more generally are easily dismissed.  The contention that Begum provides a ‘binding precedent’ that must be followed in relation to the specific situation rule is also suspect, not least given that the Supreme Court has recognised and applied the change articulated in Eweida.

Relying upon the specific situation rule as formulated in Begum is also unnecessary. Holding that there was an interference with Article 9 would not have meant that the claimant would have won. This would have depended on the question of justification, an issue that Linden J considered in detail in case he was ‘wrong on the issue of interference, and because the issue is also relevant to the question of indirect religious discrimination’ (para 182). He concluded in respect of both Article 9 and the indirect discrimination argument under the Equality Act that the actions of the school were proportionate:   ‘The disadvantage to Muslim pupils at the School caused by the [ban] is in my view outweighed by the aims which it seeks to promote in the interests of the School community as a whole, including Muslim pupils’ (para 232). Notably, in relation to indirect discrimination,  the High Court accepted the claimant’s submission that  there had been a detriment, noting:  ‘The test for whether an act or omission amounts to a detriment is not the same as the test for an interference with the freedom to manifest beliefs under Article 9 ECHR.’ (para 229). This suggests that the scope of protection afforded by Article 9 is less than that provided by the Equality Act, which is an unsatisfactory state of affairs.

It may be countered that the reasoning in relation to the Article 9 question of interference does not matter. The same decision would have been made had the court held that there was interference.  This case was dismissed on grounds of justification and there is much to debate and critique in relation to that.  Yet, the High Court’s disposal of the question of interference is significant. It suggests that the specific situation rule has survived its rejection at Strasbourg in Eweida, and if the High Court’s reasoning is followed, then Begum will continue to be authoritative until the Supreme Court considers the matter head-on. Given the impotence of Article 9 and the effect this will have not only upon the success of claims in the lower courts but also upon the bringing of claims let alone, this is deeply regrettable. Perhaps it is time to say a prayer for Article 9 – or perhaps there is a need to manifest a challenge to this unjust, incorrect and unnecessarily restrictive interpretation

Russell Sandberg

[Cite this article as: Russell Sandberg, “Banning ritual prayers in school: Michaela Schools Trust” in Law & Religion UK, 19 April 2024, https://lawandreligionuk.com/2024/04/19/say-a-prayer-for-article-9-r-on-the-application-of-ttt-v-michaela-school-and-the-question-of-interference/.]