Now that a schoolgirl has won the right to wear a jilbab, the government must issue schools with clear guidelines, writes Yvonne Spencer

The case involving the Muslim schoolgirl, Shabina Begum from Luton, who won her right to wear religious dress in school (SB v the Headteacher and Governors of Denbigh High School 2005 EWCA Civ 199) follows swiftly on the heels of the House of Lords decision regarding the Belmarsh detainees.


Human rights lawyers must be jumping for joy, for it seems the courts are finally embracing our European Convention rights.


But interesting though the Begum case may be for lawyers, the people having to grapple with this decision are those managing our schools. It is surely difficult for them to know whether this decision stands alone on its facts, or if it means they no longer have the right to insist all pupils wear school uniform. As one commentator put it: 'At the last census thousands of people registered their religion as "Jedi". Are we to expect a rush of children turning up at school dressed as Luke Skywalker?'


The National Union of Teachers announced last week that it will issue guidance in the light of this decision. The Department for Education and Skills (DfES) is being more reticent. This is surprising given Lord Justice Brooke's call for the DfES to give further guidance based on his judgment.


Existing department guidance allows schools to set school uniform policies in consultation with parents and community groups. In so doing, schools must take account of the Race Relations Act and the Human Rights Act.


However, schools are expressly prohibited from excluding pupils for breaching school uniform rules. Denbigh High School could no more send Ms Begum home for wearing religious dress, than it could a pupil who breached uniform policy by wearing a nose ring. The school - and with respect the deciding judge in the High Court - failed to appreciate this point, perceiving instead that Ms Begum had absented herself by refusing to comply with the school uniform policy.


But of course Ms Begum was not flagrantly breaking school uniform rules. She was asking to be allowed to observe a stricter interpretation of her Muslim faith. In relation to her article 9 right to manifest her religious beliefs, Lord Justice Brooke observed that nobody deciding the issue at the school started from the premise that Ms Begum had human rights recognised in English law. The onus lay on the school to justify its interference with these rights.


Instead the school took the view that the school uniform policy was there to be obeyed and if she didn't like it she should go to a different school. Subsequently she missed out on two years of education. Having found there had been a breach of her article 9 right, the Court of Appeal had no difficulty finding there had been an infringement of her right to education under article 2, protocol 1, applying A v Headteacher and Governors of Lord Grey School [2004] EWCA Civ 382.


Unfortunately, the Court of Appeal was not asked to decide on damages. This is perhaps disappointing to practitioners hoping for some indication of quantum, even if just to assist when completing public funding applications. One might ask how many similar cases the Legal Services Commission will be prepared to fund where claimants choose not to seek damages.


Viewed most literally, this was a dispute about a few inches of cloth. It led to a bright, articulate pupil missing valuable education, and a school having to pay the equivalent of a teacher's annual salary in costs. It is to be hoped that in the light of this decision the DfES will issue detailed guidance that will enable schools to incorporate human rights into school policies, and embrace diversity.


Solicitor-advocate Yvonne Spencer represented Shabina Begum in the High Court. She joins Colchester firm Fisher Jones Greenwood in April