A piece by Nahide Basri
The Rule of Law is not easy to define, but broadly, there are two main lines of thinking. The content-free definition advocated by Raz defines Rule of Law in procedural terms, limiting its scope narrowly to the process through which laws are made[1]. Whereas, the content-rich definition expands the scope of this definition further; it adds that the substance of laws should also respect fundamental human rights. The contrast between both approaches played out in Court of Appeal’s (CA) and House of Lord’s (HL) approach in Begum v Denbigh High School[2]. The case concerned Begum’s right to religious manifestation as protected by Article 9 European Convention of Human Rights (ECHR), incorporated into domestic law through Human Rights Act (HRA) 1998. While the CA found violation because the School authorities had failed to “consider her case in an appropriately right-responsive manner”[3] – thus focusing on the procedure, the HL overturned the decision because “as a matter of substance” the decision of the School did not violate her Article 9.This essay will argue that HL’s approach in focusing on the substance is preferable to the CA’s procedure-based approach. Yet, it will be argued that the HL’s approach still falls short of the content-rich definition of Rule of Law. It is argued that Lord Bingham’s criticisms of the CA can be recycled to criticise HL’s own approach. Thus, despite the rhetoric of the HL, it is argued that the HL itself does not fulfil the promises of a content-rich definition: the judgement is dubious in terms of substantive protection of human rights.
The facts of the case provide a useful background. The applicant was Begum, who had been attending Denbigh High School, predominantly comprised of Muslim students. The School had three different uniform options for Muslim students, one of which Begum had been wearing herself for two years. One day, she visited the school with her brother, and claimed that she wanted to wear a more conservative uniform. The School consulted relevant Muslim authorities whether a more modest uniform than the existing one was necessary for the practice of Islam, and receiving a negative answer, rejected Begum’s request. Begum consequently argued a violation of her freedom of religion as protected by Article 9 of the ECHR. The CA initially ruled that there was a violation of her rights under Article 9. The approach the CA adopted reflects a content-free understanding of the rule of law. Their approach was mainly procedural: the focus was not on whether there had been a substantive breach of Begum’s Article 9. Rather, Brooke LJ set out a series of questions that he believed the School should have asked, but did not. As Lord Bingham pointed out in the House of Lords judgement, nothing in the Court of Appeal’s judgement said that the School could have reached the same result without violation had it reasoned differently. Thus, the focus was not on the School’s decision not to allow Begum’s preferred uniform, but instead the procedure the School followed in coming to that decision. Thus, for the CA, the School had not employed a thorough proportionality analysis; and it was because of this that Begum was successful. Perhaps surprisingly, the judgement did not include any discussion as to whether as a matter of substance the School’s attitude towards Begum was justifiable.
In contrast to the CA’s procedural approach was the HL’s substantive approach which heard the case next. The HL overturned CA’s decision. Although there was an interference with freedom of religion in Article 9(1), the HL found this infringement was justified under paragraph 2, for the protection of rights and freedoms of others. As Lady Hale explained, by declining Begum’s request, the School was in fact protecting other girls who would be forced by their families to wear that more modest uniform against their will. Importantly, the HL rejected the CA’s procedural approach with Lord Bingham arguing that “what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”[4] In fact, he was quite assertive in his attack to the Court of Appeal’s approach: he quoted Davies that a “retreat to procedure is of course a way of avoiding difficult questions,”[5] and added that it is “clear that the court must confront these questions, however difficult.”[6] Arguably, this approach is much more effective in terms of actually ensuring the protection of rights. One can suggest that following CA’s reasoning, an unjustifiable infringement of a right may not be classified as violation if the authority in concern asks some pre-determined questions before making a decision, and has followed a certain procedure. As Thomas Poole suggests, “if creating a culture of justification is the overriding objective, then requiring public authorities to justify their decisions explicitly in terms of rights and related values might be seen as entirely justified.”[7] Certainly, generating a culture of human rights and stressing their importance is desirable – but not if that comes at the cost of actually protecting human rights. More important than the pretence of protection is the reality of protection. CA’s approach “would at best induce a box-ticking mentality among decision-makers”[8] and on its own will not add anything to the protection of human rights and Rule of Law in a substantive perspective. This narrow procedural approach is highly formalistic – “it produces the perverse outcome of wins for rights-claiming applicants even where the rights-based arguments they adduce are, as a matter of substance, transparently weak.”[9] Again, this is the result of concentrating on process rather than simply asking the relevant question: is the right concerned infringed, or not? The Convention is created for one purpose only – the actual protection of human rights – and “to emphasise procedure at the expense of substance is to mistake the nature of Convention rights.”[10] Therefore, it is suggested that HL’s approach in many ways is preferable as opposed to the CA’s approach, and a positive step towards ensuring the protection of Rule of Law and human rights at a practical (as opposed to procedural) dimension. Despite this, however, HL’s approach is also to be criticised in many ways, casting doubts as to how important the judgement is in terms of human rights.
It is argued that HL displayed similar weaknesses it accused CA of. Borrowing from the European Court of Human Rights (ECtHR), it reasoned its judgment along the lines of a margin of appreciation[11]. While Lord Hoffmann acknowledged that margin has “no application” in domestic law, it was suggested that “an area of judgement, comparable to the margin of appreciation, must be allowed to the school.” This proved problematic: while Lord Bingham firmly asserted that courts must be prepared to ask questions, “however difficult” (above), a wide margin(-like device) was used by the HL to escape difficult questions. It should be noted that this essay is not evaluating the correctness of the outcome in this case, but rather, analysing the HL’s reasoning in coming to that outcome. So in Begum, the government argued that the pressing social need for the restriction was that if Begum was allowed, other girls might also be forced by their families to wear similar clothing. While this argument might be valid, it is incomplete. The HL did not explain why clothes might be the best way to prevent external pressures on girls, or why being pressured to wear a more modest uniform was worse than being pressured not to wear it, if that was genuinely the applicant’s preferred way of manifesting her religion.[12] The need to make these explanations was frustrated by the sheer width of the margin. Thus, using a wide margin to escape difficult questions was the core weakness in HL’s reasoning, which has damaging effects on the adequate protection of human rights and Rule of Law.
This feeds into the second problem – through “pretence to neutrality” and not directly engaging with ‘difficult’ questions, the Court in effect reinforces “mainstream perceptions.”[13] Importantly, the prohibition was justified on the basis that other girls might then be pressurised by their families into wearing the more conservative uniform option. In this light, prohibitions were pre-emptive measures. Macklem calls this “militant democracy”: governments curtailing religious freedoms to entrench secularism.[14] This is problematic because it assumes that religion necessarily conflicts democracy, presenting them as mutually exclusive. As Vakulenko posits, this language of conflict implies Western chauvinism, presenting religion as un-democratic/un-free.[15] This is hypocritical: Western women dressing by the rules of “femininity and fashion” might not necessarily be more free than those dressing by the religious ‘rules’[16]. Nevertheless, under the “almost unlimited” margin, through deferring to the governments’ arguments, the Court’s silence appears to endorse this idea of conflict, which perpetuates to religious stereotypes. This is evident in similar cases before the ECtHR. One example is SAS v France, where ECtHR accepted the need to ensure people can effectively interact and ‘live together’ as a legitimate justification to ban on full-face veil. As stated in the partly dissenting opinion of Judges Nussberger and Jaderblom, it might not be the veil itself that hampers social integration, but “the philosophy presumed to be linked to it.”[17] By deferring to the government’s argument that the ban was necessary for the aim of ‘living together,’ ECtHR tacitly approved this philosophy. Therefore, even though there was no discussion of secularism, the Court’s silence still contributed to existing religious stereotypes. While a veil may be a controversial dress, the Court should have at least evaluated how it actually hampers ‘living together.’ The failure to do so is a symptom of an “almost unlimited” margin, and a highly deferential attitude that comes with it. This parallels the highly deferential approach adopted by the HL in Begum towards the School. Undoubtedly, implications of this are not very positive for the protection of human rights – in contrast, this kind of reasoning adopted by HL, which implies that religion conflicts with democracy, generates hostility, and leads to the marginalisation of Islamic spheres.
In conclusion, this essay has argued two main points regarding the implications of Begum on human rights and the Rule of law. Firstly, the HL’s choice of content-rich definition of Rule of Law over the procedural approach of CA is to be welcomed in human rights jurisprudence. However, careful analysis of the judgement offered by the HL means that the initially courageous approach of HL fails to meet its full potential. Two main problems in the judgement have been identified – firstly, the HL’s highly deferential attitude means that it does not answer the “difficult” questions it accused the CA of, and secondly, this deferential attitude feeds into religious stereotypes and marginalisation, which do not protect, but rather, undermine human rights. Thus, while the HL overruled CA solely because of the need to provide substantial protection in the field of human rights, in substantive terms, its lacklustre approach represents a wasted opportunity.
References
[1] Joseph Raz, The rule of law and its virtue (1977) 93 Law Quarterly Review 195
[2] Begum v Denbigh High School [2006] UKHL 15
[3] Begum v Denbigh High School [2006] UKHL 15
[4] Begum v Denbigh High School [2006] UKHL 15
[5] Begum v Denbigh High School [2006] UKHL 15
[6] Begum v Denbigh High School [2006] UKHL 150
[7] Thomas Poole, The Reformation of English Administrative Law, (2007)
[8] Thomas Poole, The Reformation of English Administrative Law, (2007)
[9] Thomas Poole, The Reformation of English Administrative Law, (2007) 155
[10] Thomas Poole, The Reformation of English Administrative Law, (2007) 156
[11] Margin of appreciation is a certain degree of deference the European Court of Human Rights give to national authorities if the issue falls within their competence.
[12] Vakulenko, Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends, Human Rights Law Review 7:4 (2007) 717-739
[13] See ibid
[14] Macklem, Militant democracy and religious freedom in Europe
[15] Vakulenko, Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends, Human Rights Law Review 7:4 (2007) 717-739
[16] See ibid.
[17] S.A.S. v France, (2015) 60 EHRR 11