The human rights case of a schoolgirl who took her battle to wear a particular form of dress to court has resulted in a judicious verdict, argues Roger Smith

Search for the House of Lords’ ruling in R v Headteacher and Governors of Denbigh High School [2006] UKHL 15 on the Internet. Read Lord Bingham’s judgment. Do not worry about technicalities – this case is interesting rather than complicated. The senior law lord’s argument is buttressed with a broad display of citations of European, domestic and South African precedents, but at the heart of it is a remarkably clear and humane logic that shows human rights thinking at its best.


Shabina Begum was 13 when she decided her religion would allow her only to wear a particular form of Islamic dress, the all-embracing jilbab, to Denbigh High school in Luton. Her choice was contrary to the school’s dress policy. That policy had been drafted with a care that might not have been immediately recognised by the Children’s Legal Centre and Cherie Booth QC, who challenged them.


A working party had consulted staff, students, parents and the Imams of no fewer than three local mosques. As a result, permitted dress included a form of shalwar kameez (trousers and tunic) that was chosen by a number of Muslim, Hindu and Sikh girls. The head teacher had subsequently approved an optional matching headscarf. For two years, Ms Begum wore the uniform without comment.


The school got rave reviews in its latest Ofsted report: ‘An ethos has been created in the school where pupils are expected to do well, whatever their levels of disadvantage, and where individual pupils and their cultures are valued and supported.’ The head teacher, Yasmin Bevan, was born into a Bengali Muslim family and seems universally admired. Some 95% of its pupils come from ethnic minority backgrounds and English is their second language for 85%. Around 80% of pupils are Muslim.


On the first day of the autumn term in 2002, Ms Begum arrived without prior notice at the school wearing her jilbab. She was accompanied by her brother, Shuweb Rahman, and another man. They indicated that Ms Begum would henceforth be wearing the jilbab as a form of dress required by her religion; any objection would infringe her human rights and legal proceedings would be taken if she were excluded.


A somewhat harassed deputy head told Ms Begum to come back in school uniform. Instead, she went home and stayed there during a two-year stand-off. Eventually, she joined another school in the area. Mosques confirmed that the school’s position was acceptable in religious terms. Parental opposition to the jilbab was said to include those within the Muslim community who associated it with an extremism that made them uncomfortable.


The case reached the House of Lords via the Court of Appeal, where Lord Justice Brooke had decided that the school might, or might not, have got the right policy but it had certainly not provided an audit trail of its reasoning that showed that it had considered human rights provisions in doing so. Lord Bingham was having nothing of this kind of ‘new formalism’ and announced a series of justifications that all amount to the same: ‘What matters in any [human rights] case is the practical outcome, not the quality of the decision-making process that led to it.’ He quoted with approval commentary that argued: ‘The retreat to procedure is… a way of avoiding difficult questions.’ Round one to the senior law lord.


Article 9 of the European Convention on Human Rights protects the right of freedom, thought or religion. Lord Bingham noted that it is in two parts. The first gives an absolute right to freedom of belief; the second subjects the right to manifest that belief ‘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’.


Ms Begum, decided Lord Bingham, had every right to her religious belief about clothing, but her right to manifest that belief was tempered by a requirement to be proportionate. Ms Begum could have conformed with her religion at two other local schools, so her rights were not, as a matter of fact, impeded. However, for good measure, Lord Bingham agreed with some of his colleagues that Denbigh High had acted impeccably and that the restriction was not, in any event, disproportionate.


Ms Begum’s local MP, among others, argued that the whole case was a set-up engineered by Hizb ut-Tahrir, an organisation that the Prime Minister has expressed his wish to proscribe under anti-terrorism provisions. Mr Rahman denies this. Ms Begum, for her part, coherently asserts that she was acting on her own account.


Lord Bingham’s great coup is his demonstration that judgments on human rights often require balance and thoughtfulness. Ms Begum’s response to her defeat was to announce that she was dropping her case and getting on with her life. The potentially inflammatory issue of Islamic dress in schools appears to be, with schools as careful as Denbigh High at least, defused. Game, set and match to the judge.


Roger Smith is is director of the law reform and human rights organisation, Justice