Wednesday, March 22, 2006

Why we need the Lords - Reason 3,472: The Begum Case

They are very obviously, very sensible.

On the Appeal Court judging against the school, not because of the uniform policy, but because of the decision-making process that gave rise to the policy:
Para 30: ... 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.
i.e. It is what you do that matters, not how you decide to do it...

The whole of Para 34 is good stuff too:
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.
Tim Worstall will like that: devolve decisions to the lowest level possible.

The Noble and Learned Lords did not seem to think that Ms Begum (or her brother) had acted in entirely good faith:
Shabina's discovery that her religion did not allow her to wear the uniform she had been wearing for the past two years created a problem for her. Her family had chosen that school for her with knowledge of its uniform requirements. She could have sought the help of the school and the local education authority in solving the problem. They would no doubt have advised her that if she was firm in her belief, she should change schools. That might not have been entirely convenient for her, particularly when her sister was remaining at Denbigh High, but people sometimes have to suffer some inconvenience for their beliefs. Instead, she and her brother decided that it was the school's problem. They sought a confrontation and claimed that she had a right to attend the school of her own choosing in the clothes she chose to wear.
Lord Scott doesn't like the original approach either:
Para 80: The quite unnecessarily confrontational character of the arrival at the school on 3 September 2002 of Shabina and the two men is evident. Shabina was a girl of 13, some two weeks short of her fourteenth birthday.
The confrontational nature of the peremptory manner in which the jilbab issue was raised with the school, a manner which is very unlikely to have been chosen by Shabina, not yet 14 years of age, set the tone for how the issue then developed.
And in Para 83:
In my opinion, therefore, the direction to Shabina to attend school wearing the proper school uniform can only be attacked as an unlawful direction under domestic law if the school uniform rules that she was being required to obey were themselves so unreasonable as to be unlawful, or if the decision to insist upon Shabina observing the school uniform rules was similarly unreasonable. I regard both contentions as being virtually unarguable.
This is useful:
The cases demonstrate the principle that a rule of a particular public institution that requires, or prohibits, certain behaviour on the part of those who avail themselves of its services does not constitute an infringement of the right of an individual to manifest his or her religion merely because the rule in question does not conform to the religious beliefs of that individual. And in particular this is so where the individual has a choice whether or not to avail himself or herself of the services of that institution, and where other public institutions offering similar services, and whose rules do not include the objectionable rule in question, are available.
Baroness Hale waffles a little bit, but delivers a cracker:
If a woman freely chooses to adopt a way of life for herself, it is not for others, including other women who have chosen differently, to criticise or prevent her. Judge Tulkens, in Sahin v Turkey, at p 46, draws the analogy with freedom of speech. The European Court of Human Rights has never accepted that interference with the right of freedom of expression is justified by the fact that the ideas expressed may offend someone.

To the chaps from HuT backing this nonsense, that particular quote must really sting.

The Noble Baroness continues:
Likewise, the sight of a woman in full purdah may offend some people, and especially those western feminists who believe that it is a symbol of her oppression, but that could not be a good reason for prohibiting her from wearing it.
Quite so, but that is not what the school was arguing. It was arguing that other pupils objected to the jilbab because it would make it harder for them to stand up for themselves in the face of pressure from extremists:
A mandatory policy that rejects veiling in state educational institutions may provide a crucial opportunity for girls to choose the feminist freedom of state education over the patriarchal dominance of their families. Also, for the families, such a policy may send a clear message that the benefits of state education are tied to the obligation to respect women's and girls' rights to equality and freedom
this was a specific concern at the school in question:
This is demonstrated by the fact that girls have subsequently expressed their concern that if the jilbab were to be allowed they would face pressure to adopt it even though they do not wish to do so.

Not to worry though: ever the news manager, TB has ensured that the BBC will have other things to do tonight than to poke fun at the wrong-headedness of his wife...


AS said...

Good commentary.

Have you looked at the excellent Rose report yet?

dearieme said...

"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." It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the people professionally involved, to overrule their judgment on all sorts of matters.

The Pedant-General in Ordinary said...


Quite so.

You have been very quiet for a while - I see you haven't had cause to interject for nearly two months. Nice holiday?

Or have I not be sufficiently pithy (or wrong headed) to merit a visit?


Welcome to Infinitives Unsplit and Thank you.

I have seen the Rose Report, but I must confess that I have not read it in detail.

You might wish to see my hideously ill-informed commentary on the topic throughout Dec last year

Toodle Pip!