Skip to main content

Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
    1. R v A [2001] UKHL 25; [2002] 1 AC 45; [2001] 3 All ER 1; [2001] 2 WLR 1546
    2. Re S (Minors) (Care order: implementation of care plan) [2002] UKHL 10: [2002] 2 All ER 192
    3. Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467; [2003] 2 All ER 593
    4. Ghaidan v Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 All ER 411
    5. Aston Cantlow...Parochial Church Council v Wallbank and another [2003] UKHL 37, [2003] 3 All ER 1213
    6. R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233
    7. Wainwright and another v Home Office [2003] UKHL 53, [2004] 2 AC 406, [2003] 4 All ER 969
    8. YL v Birmingham City Council and others [2007] UKHL 27, [2008] 1 AC 95
    9. R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; [2006] 2 WLR 719
    10. Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; [2006] 2 WLR 719

LORD BINGHAM OF CORNHILL: 1 The respondent, Shabina Begum, is now aged 17. She contends that the appellants, who are the Head Teacher and Governors of Denbigh High School in Luton ("the school"), excluded her 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. Bennett J, ruling on the respondent's claim for judicial review at first instance, rejected all these contentions.... The Court of Appeal..., reversing the judge, accepted each of them....

2 ...[T]his case concerns a particular pupil and a particular school in a particular place at a particular time. It must be resolved on facts which are now, for purposes of the appeal, agreed. The House is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be a most inappropriate question for the House in its judicial capacity....

The agreed facts

3 The school is a maintained secondary community school taking pupils of both sexes aged 11-16. It has a very diverse intake, with 21 different ethnic groups and ten religious groupings represented. About 79% of its pupils are now Muslim, the percentage having fallen from 90% in 1993. It is not a faith school, and is therefore open to children of all faiths and none.... .

4 The governing body of the school always contained a balanced representation of different sections of the school community. At the time of these proceedings, four out of six parent governors were Muslim, the chairman of the Luton Council of Mosques was a community governor and three of the local education authority ("LEA") governors were also Muslim....

5 The head teacher, Mrs Yasmin Bevan, was born into a Bengali Muslim family and grew up in India, Pakistan and Bangladesh before coming to this country. She has had much involvement with Bengali Muslim communities here and abroad, and is familiar with the codes and practices governing the dress of Muslim women. Since her appointment as head teacher in 1991, when it was not performing well, the school has come to enjoy an outstanding measure of success.

6 The head teacher believes that school uniform plays an integral part in securing high and improving standards, serving the needs of a diverse community, promoting a positive sense of communal identity and avoiding manifest disparities of wealth and style. The school offered three uniform options. One of these was the shalwar kameeze: a combination of the kameeze, a sleeveless smock-like dress with a square neckline, revealing the wearer's collar and tie, with the shalwar, loose trousers, tapering at the ankles. A long-sleeved white shirt is worn beneath the kameeze and, save in hot weather, a uniform long-sleeved school jersey is worn on top. It has been worn by some Muslim, Hindu and Sikh female pupils.

7 In 1993 the school appointed a working party to re-examine its dress code. The governors consulted parents, students, staff and the imams of the three local mosques. There was no objection to the shalwar kameeze, and no suggestion that it failed to satisfy Islamic requirements. The governors approved a garment specifically designed to ensure that it satisfied the requirement of modest dress for Muslim girls. Following the working party report the governors, in response to several requests, approved the wearing of head scarves of a specified colour and quality.

8 The school went to some lengths to explain its dress code to prospective parents and pupils. This was first done in the October of the year before a pupil would enter, and again at an open evening in the July before admission. A letter written to parents reminded them of the school's rules on dress.

9 The respondent is Muslim. Her father died before she entered the school, and at the material times she lived with her mother (who did not speak English and has since died), a sister two years older, and a brother (Rahman), five years older, who is now her litigation friend. The family lived outside the school's catchment area, but chose it for the respondent and her elder sister, and were told in clear terms of the school's uniform policy. For two years before September 2002 the respondent wore the shalwar kameeze happily and without complaint. It was also worn by the respondent's sister, who continued to wear it without objection throughout her time at the school.

10 On 3 September 2002, the first day of the autumn term, the respondent (then aged nearly 14) went to the school with her brother and another young man. They asked to speak to the head teacher, who was not available, and they spoke to the assistant head teacher, Mr Moore. They insisted that the respondent be allowed to attend the school wearing the long garment she had on that day, which was a long coat-like garment known as a jilbab. They talked of human rights and legal proceedings. Mr Moore felt that their approach was unreasonable and he felt threatened. He decided that the respondent should wear the correct school uniform and told her to go home, change and return wearing school uniform. His previous experience in such situations, with one exception, was that pupils always complied. He did not believe he was excluding the respondent, which he had no authority to do, but did not allow her to enter the school dressed as she was, this being (it was said) the only garment which met her religious requirements because it concealed, to a greater extent than the shalwar kameeze, the contours of the female body, and was said to be appropriate for maturing girls. The respondent then left with her brother and the other young man. The young men said they were not prepared to compromise over this issue.

11 On the same day the head teacher, who had been informed of the incident, wrote to the respondent's mother and brother. After setting out an account of the incident, she stated that the uniform had been agreed with the governing body, and that it was her view, and that of the LEA, that the school's uniform rules were more than reasonable in taking into account cultural and religious concerns. She noted that the respondent had not attended school because she had been removed by those representing her and stated that the respondent was required to attend school dressed in the correct uniform. She further stated that the matter would be referred to the Education Welfare Service (the "EWS") should the respondent fail to attend. The letter concluded by inviting the respondent to raise the issue with the chair of the governors if the family had any further concerns. The school was anxious to establish contact with the respondent's guardian and accordingly, on 4 September 2002, a member of the support team telephoned her house and spoke to a male member of the family who said that the respondent had seen her solicitor and was going to sue the school. On 5 September 2002 Mr Moore telephoned and spoke to the respondent's brother. Mr Moore inquired why the respondent was not in school. The respondent's brother told Mr Moore that he (the brother) was not prepared to let the respondent attend school unless she was allowed to wear a long skirt. On 11 September 2002 the school sent a letter concerning the respondent's non-attendance to the family and on 27 September 2002 the school referred the matter to the EWS.

12 On 22 October 2002 solicitors on behalf of the respondent wrote to the head teacher, the governors and the LEA, contending that the respondent had been "excluded/suspended" from school "because she refused to remove her Muslim dress comprising of a headscarf and long over garment". The letter contended that the respondent believed that it was an absolute obligation on her to wear that dress and she was not prepared to take it off. It also alleged that the school's decision to exclude the respondent breached her human rights under United Kingdom and European human rights law. Articles 9, 8 and 14 and article 2 of the First Protocol to the Convention were set out and reasons given explaining why the school's actions had breached the respondent's human rights. On 23 October 2002 Mr Ahmed of the EWS met the respondent and her brother and emphasised the importance of the respondent attending school. Other attempts were made by the EWS to get the respondent back into the school.

13 In December 2002 the appellants and the LEA sought independent advice on whether the school uniform offended against the Islamic dress code. Two mosques in Luton, the London Central Mosque Trust and the Islamic Cultural Centre advised that it did not. On behalf of the latter two institutions Dr Abushady wrote, in a letter of 18 December 2002, that although there were many schools of thought the views he had expressed reflected the general consensus of opinion among the vast majority of Muslim scholars. The appellants' solicitor informed the respondent's of this advice, said that the respondent's religious views had been considered and provision made to accommodate them and strongly urged that she return to school. In February 2003 the EWS further sought to persuade the respondent to attend the school. Between March and June 2003 various attempts were made to find her a place at another school. A meeting was held at the school on 16 May 2003 between the respondent, her brother and two members of the EWS, in order to persuade her to return to the school, but she insisted that she would not return unless the school changed its position.

14 The respondent instructed new solicitors. On 31 May 2003 Mr Basharat Ali of Messrs Adams (later Aman) wrote to the Islamic authorities previously consulted by the appellants, seeking their advice on the respective merits of the shalwar kameeze or the jilbab from an Islamic perspective. He also wrote to the LEA contending that the shalwar kameeze contradicted Islamic dress rules. He asserted that the respondent had been constructively excluded from the school and sought to initiate the complaints procedure. The suggestion that the respondent had been constructively excluded was rejected by the appellants' solicitor: she remained on the school roll, she had throughout been able to attend but had preferred to absent herself. Various compromises were discussed in June and September 2003, but were rejected by one or other party.

15 The respondent's solicitor obtained opinions from three sources (two of them imams previously consulted by the appellants) to the effect that the jilbab was the appropriate dress for mature Muslim women. This advice was passed on to the appellants, who did not accept it but repeatedly urged the respondent to return to school. The chairman of the governors reviewed the matter and supported the action of the head teacher. The appellants reiterated that the respondent had not been excluded, that she had a place at the school but that she must wear one of the school's approved uniforms. The EWS met the respondent in September 2003 and offered her their help in getting a place at another school if that was what she wanted. In the same month there was forwarded to the school a statement made by the Muslim Council of Britain on the "Dress code for women in Islam": there was no recommended style; modesty must be observed at all times; trousers with long tops or shirts for school wear were "absolutely fine".

16 In October 2003 a committee of the governors met and considered this matter. It gave a lengthy decision upholding the head teacher's decision. The respondent was urged to return, or to seek a place at another school. The EWS again offered help in making a transfer if that was what the respondent wanted. She made an application to one school, but it was full. She was told of two other schools where she could wear the jilbab, but she did not apply to them.....

18 The respondent issued her claim for judicial review on 13 February 2004. Since then, according to the appellants, a number of Muslim girls at the school have said that they do not wish to wear the jilbab and fear they will be pressured into wearing it. A demonstration outside the school gates by an extreme Muslim group (unconnected with the respondent) in February 2004, protesting against the education of Muslim children in secular schools, caused a number of pupils to complain to staff of interference and harassment. Some pupils were resistant to wearing the jilbab as unnecessarily restrictive and associated with an extremist group. The head teacher and her assistant, and also some parents, were concerned that acceptance of the jilbab as a permissible variant of the school uniform would lead to undesirable differentiation between Muslim groups according to the strictness of their views. The head teacher in particular felt that adherence to the school uniform policy was necessary to promote inclusion and social cohesion, fearing that new variants would encourage the formation of groups or cliques identified by their clothing. The school had in the past suffered the ill-effects of groups of pupils defining themselves along racial lines, with consequent conflict between them. The school uniform had been designed to avoid the development of sub-groups identified by dress.

19 In these proceedings the respondent sought leave to challenge (1) the decision of the head teacher and governors not to admit her to the school whilst wearing the jilbab, and (2) the decision of Luton Borough Council not to provide her with education whilst she was denied access to education by the head teacher. She was granted leave to pursue the first of these claims but not the second. She renewed her application to pursue the second claim before Bennett J, but leave was refused for reasons which he gave in para 107 of his judgment.

Article 9 of the Convention

20 So far as relevant to this case article 9 provides:

20 "Freedom of thought, conscience and religion

"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... for the protection of the rights and freedoms of others."

The fundamental importance of this right in a pluralistic, multi-cultural society was clearly explained by my noble and learned friend, Lord Nicholls of Birkenhead, in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 , paras 15-19, and by the South African Constitutional Court in Christian Education South Africa v Minister of Education [2001] 1 LRC 441 , para 36. This is not in doubt. As pointed out by Lord Nicholls in para 16 of the passage cited, article 9 protects both the right to hold a belief, which is absolute, and a right to manifest belief, which is qualified.

21 It is common ground in these proceedings that at all material times the respondent sincerely held the religious belief which she professed to hold. It was not the less a religious belief because her belief may have changed, as it probably did, or because it was a belief shared by a small minority of people. Thus it is accepted, obviously rightly, that article 9(1) is engaged or applicable. That in itself makes this a significant case, since any sincere religious belief must command respect, particularly when derived from an ancient and respected religion. The main questions for consideration are, accordingly, whether the respondent's freedom to manifest her belief by her dress was subject to limitation (or, as it has more often been called, interference) within the meaning of article 9(2) and, if so, whether such limitation or interference was justified under that provision.

Interference

22 As Lord Nicholls pointed out in the Williamson case, at para 38, "What constitutes interference depends on all the circumstances of the case, including the extent to which in the circumstances an individual can reasonably expect to be at liberty to manifest his beliefs in practice". As the Strasbourg court put it in Kalaš v Turkey (1997) 27 EHRR 552 , para 27,

"Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account."

The Grand Chamber endorsed this paragraph in Sahin v Turkey (Application No 44774/98) (unreported) 10 November 2005 , para 105. The commission ruled to similar effect in Ahmad v United Kingdom (1981) 4 EHRR 126 , para 11:

"the freedom of religion, as guaranteed by article 9, is not absolute, but subject to the limitations set out in article 9(2). Moreover, it may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom."

23 The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience. Thus in X v Denmark (1976) 5 DR 157 a clergyman was held to have accepted the discipline of his church when he took employment, and his right to leave the church guaranteed his freedom of religion. His claim under article 9 failed. In Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, paras 54 and 57, parents' philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their children to state schools or educate them at home. The applicant's article 9 claim in Ahmad's case, paras 13, 14 and 15, failed because he had accepted a contract which did not provide for him to absent himself from his teaching *728 duties to attend prayers, he had not brought his religious requirements to the employer's notice when seeking employment and he was at all times free to seek other employment which would accommodate his religious observance. Karaduman v Turkey (1993) 74 DR 93 is a strong case. The applicant was denied a certificate of graduation because a photograph of her without a headscarf was required and she was unwilling for religious reasons to be photographed without a headscarf. The commission found, at p 109, no interference with her article 9 right because, at p 108:

"by choosing to pursue her higher education in a secular university a student submits to those university rules, which may make the freedom of students to manifest their religion subject to restrictions as to place and manner intended to ensure harmonious coexistence between students of different beliefs."

In rejecting the applicant's claim in Konttinen v Finland (1996) 87-A DR 68 the commission pointed out, at p 75, para 1, that he had not been pressured to change his religious views or prevented from manifesting his religion or belief; having found that his working hours conflicted with his religious convictions, he was free to relinquish his post. An application by a child punished for refusing to attend a National Day parade in contravention of her beliefs as a Jehovah's Witness, to which her parents were also party, was similarly unsuccessful in Valsamis v Greece (1996) 24 EHRR 294 . It was held, para 38, that article 9 did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner and that there had been no interference with the child's right to freedom to manifest her religion or belief. In Stedman v United Kingdom (1997) 23 EHRR CD 168 it was fatal to the applicant's article 9 claim that she was free to resign rather than work on Sundays. The applicant in Kalaš v Turkey 27 EHRR 552 , paras 28-29, failed because he had, in choosing a military career, accepted of his own accord a system of military discipline that by its nature implied the possibility of special limitations on certain rights and freedoms, and he had been able to fulfil the ordinary obligations of Muslim belief. In Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27 , para 81, the applicants' challenge to the regulation of ritual slaughter in France, which did not satisfy their exacting religious standards, was rejected because they could easily obtain supplies of meat, slaughtered in accordance with those standards, from Belgium.

24 This line of authority has been criticised by the Court of Appeal as overly restrictive (Copsey v WWB Devon Clays Ltd [2005] ICR 1789 , paras 31-39, 44-66), and in Williamson's case [2005] 2 AC 246 , para 39, the House questioned whether alternative means of accommodating a manifestation of religions belief had, as suggested in the Jewish Liturgical case, para 80, to be "impossible" before a claim of interference under article 9 could succeed. But the authorities do in my opinion support the proposition with which I prefaced para 23 of this opinion. Even if it be accepted that the Strasbourg institutions have erred on the side of strictness in rejecting complaints of interference, there remains a coherent and remarkably consistent body of authority which our domestic courts must take into account and which shows that interference is not easily established.

25 In the present case the respondent's family chose for her a school outside their own catchment area. It was a school which went to unusual lengths to inform parents of its uniform policy. The shalwar kameeze, and not the jilbab, was worn by the respondent's elder sister throughout her time at the school, and by the respondent for her first two years, without objection. It was of course open to the respondent, as she grew older, to modify her beliefs, but she did so against a background of free and informed consent by her and her family. It is also clear that there were three schools in the area at which the wearing of the jilbab was permitted. The respondent's application for admission to one of these was unsuccessful because the school was full, and it was asserted in argument that the other two were more distant. There is, however, no evidence to show that there was any real difficulty in her attending one or other of these schools, as she has in fact done and could no doubt have done sooner had she chosen. On the facts here, and endeavouring to apply the Strasbourg jurisprudence in a reasonable way, I am of opinion that in this case (unlike Williamson's case, at para 41, where a different conclusion was reached) there was no interference with the respondent's right to manifest her belief in practice or observance. I appreciate, however, that my noble and learned friends, Lord Nicholls and Baroness Hale of Richmond, incline to a different opinion. It follows that this is a debatable question, which gives the issue of justification under article 9(2) particular significance.

Justification

26 To be justified under article 9(2) a limitation or interference must be (a) prescribed by law and (b) necessary in a democratic society for a permissible purpose, that is, it must be directed to a legitimate purpose and must be proportionate in scope and effect. It was faintly argued for the respondent that the school's uniform policy was not prescribed by law, but both the judge (para 78) and the Court of Appeal [2005] 1 WLR 3372 , paras 61, 83 and 90, held otherwise, and rightly so. The school authorities had statutory authority to lay down rules on uniform, and those rules were very clearly communicated to those affected by them. It was not suggested that the rules were not made for the legitimate purpose of protecting the rights and freedoms of others. So the issue is whether the rules and the school's insistence on them were in all the circumstances proportionate. This raises an important procedural question on the court's approach to proportionality and, depending on the answer to that, a question of substance.

27 In para 75 of his leading judgment in the Court of Appeal, Brooke LJ set out a series of questions to be asked and answered by a decision-maker resolving an issue raised under article 9 . He observed (para 76) that the school did not approach the matter in that way at all. Since, therefore, the school had approached the issues from an entirely wrong direction, it could not resist her claim for declarations that it had wrongfully excluded her, that it had unlawfully denied her the right to manifest her religion and that it had unlawfully denied her access to suitable and appropriate education in breach of article 2 of the First Protocol to the Convention: para 78. But (para 81) nothing in the judgment should be taken to mean that it would be impossible for the school to justify its stance if it were to reconsider its uniform policy in the light of the judgment and decide not to alter it in any significant respect. He offered guidance (para 81) on matters the school would need to consider. Mummery and Scott Baker LJJ (paras 88, 90, 92) expressly associated themselves with this approach.

28 The Court of Appeal's procedural approach attracted the adverse criticism of some informed commentators: see Poole, "Of headscarves and heresies: The Denbigh High School case and public authority decision making under the Human Rights Act " [2005] PL 685 ; Linden and Hetherington, "Schools and Human Rights" [2005] Educational Law Journal 229 ; and, for a more ambivalent appraisal, Davies, "Banning the Jilbab: Reflections on Restricting Religious Clothing in the Light of the Court of Appeal in SB v Denbigh High School" (2005) 1:3 European Constitutional Law Review 511 . This procedural approach also prompted the Secretary of State to intervene in order to correct what he boldly described, in his written case, as a fundamental misunderstanding of the Human Rights Act 1998 . The school also, endorsing the criticisms made in the first two articles cited, have submitted that the Court of Appeal erred in failing to decide the proportionality issue on the merits. For the respondent, it was argued that the Court of Appeal was right to approach the proportionality issue on conventional judicial review lines, and to quash the decision (irrespective of the merits) if the decision-maker was found to have misdirected itself in law. Attention was drawn to other cases in which the Court of Appeal had adopted a similar approach, such as Samaroo v Secretary of State for the Home Department [2001] UKHRR 1150 , paras 19-24, R(D) v Secretary of State for the Home Department [2003] 1 FLR 979 , paras 20-23, and R (Goldsmith) v Wandsworth London Borough Council [2004] EWCA Civ 1170; (2004) 148 SJLB 1065 . The House was referred to Chapman v United Kingdom (2001) 33 EHRR 399 , para 92, where the Strasbourg court said:

"In particular, [the court] must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by article 8."

29 I am persuaded that the Court of Appeal's approach to this procedural question was mistaken, for three main reasons. First, the purpose of the Human Rights Act 1998 was not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country and not only by recourse to Strasbourg. This is clearly established by authorities such as Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546 , paras 6-7, 44; R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673 , paras 18-19; and R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] 3 WLR 837 , paras 25, 33, 34, 88 and 92. But the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision, the aspect addressed by the court in the passage from its judgment in Chapman's case quoted above. But the House has been referred to no case in which the Strasbourg court has found a violation of Convention right on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning, and action may be brought under section 7(1) only by a person who is a victim of an unlawful act.

30 Secondly, it is clear that the court's approach to an issue of proportionality under the Convention must go beyond that traditionally adopted to judicial review in a domestic setting. The inadequacy of that approach was exposed in Smith and Grady v United Kingdom (1999) 29 EHRR 493 , para 138, and the new approach required under the 1998 Act was described by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 , paras 25-28, in terms which have never to my knowledge been questioned. There is no shift to a merits review, but the intensity of review is greater than was previously appropriate, and greater even than the heightened scrutiny test adopted by the Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517 , 554. The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time: Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 , paras 62-67. Proportionality must be judged objectively, by the court: R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246 , para 51. As Davies observed in his article cited above, "The retreat to procedure is of course a way of avoiding difficult questions". But it is in my view clear that the court must confront these questions, however difficult. The school's action cannot properly be condemned as disproportionate, with an acknowledgement that on reconsideration the same action could very well be maintained and properly so.

31 Thirdly, and as argued by Poole in his article cited above, pp 691-695, I consider that the Court of Appeal's approach would introduce "a new formalism" and be "a recipe for judicialisation on an unprecedented scale". The Court of Appeal's decision-making prescription would be admirable guidance to a lower court or legal tribunal, but cannot be required of a head teacher and governors, even with a solicitor to help them. If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger's task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.

32 It is therefore necessary to consider the proportionality of the school's interference with the respondent's right to manifest her religious belief by wearing the jilbab to the school. In doing so we have the valuable guidance of the Grand Chamber of the Strasbourg court in Sahin v Turkey (Application No 44774/98) , paras 104-111. The court there recognises the high importance of the rights protected by article 9; the need in some situations to restrict freedom to manifest religious belief; the value of religious harmony and tolerance between opposing or competing groups and of pluralism and broadmindedness; the need for compromise and balance; the role of the state in deciding what is necessary to protect the rights and freedoms of others; the variation of practice and tradition among member states; and the permissibility in some contexts of restricting the wearing of religious dress.

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. After the conclusion of argument the House was referred to the recent decision of the Supreme Court of Canada in Multani v Commission scolaire Marguerite-Bourgeoys 2006 SCC 6 . That was a case decided, on quite different facts, under the Canadian Charter of Rights and Freedoms. It does not cause me to alter the conclusion I have expressed.

40 For these reasons, and those given by Lord Hoffmann, with which I agree, I would allow the appeal, set aside the order of the Court of Appeal, and restore the order of the judge. I would invite written submissions on costs within 14 days.