Introduction

On 18 March 2011, the Grand Chamber of the European Court of Human Rights (“the ECtHR”) handed down its keenly anticipated judgment in Lautsi v Italy, Application no. 30814/06.

The issue in the case was whether a provision of the Italian law requiring that crucifixes be displayed on the walls of state school classrooms constituted a violation of the Article 9 (freedom of religion) and Protocol 1, Article 2 (“A2P1”) rights of non-Christian children, and their parents, who objected to the presence of such religious symbols.

The case was previously considered by the Second Section of the ECtHR, which issued a unanimous judgment on 9 November 2009 holding that Italian law was incompatible with the Convention, finding a violation of Article 9 in conjunction with A2P1 and awarding Mrs Lautsi €5,000 in damages.

The judgment provoked a furious response, with the Strasbourg Court being widely criticised for illegitimate judicial legislation and failing to have appropriate regard to its subsidiary role as regards the balance struck between competing rights by individual Council of Europe (“CoE”) member states.

Notably, the backlash was not confined to political quarters. Shortly after the decision of the Second Section was handed down, the Italian Supreme Court issued a judgment containing dicta to the effect that decisions of the ECtHR which conflict with ‘fundamental norms’ of Italian law would lack inherent legitimacy and would not be enforced.

Consequently, the stakes in the Grand Chamber hearing were high. The case also generated an unprecedented number of third party interventions, including submissions from 9 NGOs and 10 CoE member states.

As was widely anticipated, the Grand Chamber (by a 15-2 majority) opted to retreat from the judgment of the Second Section, holding that Italian law is compatible with the ECHR and that no violation of Mrs Lautsi (or her children’s) rights had occurred. The judgment contains several statements of wider interest regarding the scope of A2P1 and the rights of parents in relation to the exposure of their children to religious symbols and concepts within the state school system.

Facts

Mrs Lautsi brought the action on behalf of herself and her two children, both of whom (at the relevant time) were being educated at a State school in Abano Terme. Her essential claim was that Article 9 and A2P1 should be interpreted as imposing an obligation on the State to maintain absolute religious neutrality within the State education system, so that any manifestation of religious imagery or symbolism that could be construed as having State approval or support would be prohibited. It was asserted that the mere exposure to the sight of a crucifix in an educational setting infringed a non-Christian child’s right to freedom of religion and was a violation of the parental right to have the child educated in conformity with his or her own philosophical convictions.

The reasoning of the ECtHR

The Court began by rehearsing its general approach to A2P1 and religion in the State school curriculum. Two points merit particular attention.

First, the Court emphasised the limitations on the right of parents to object to children being exposed to religious or philosophical teaching or concepts, stressing that what A2P1 prohibits is proselytism or indoctrination and that no valid objection can lie in respect of information conveyed in an objective, critical and pluralistic manner [§62].

Secondly, in a passage which is destined to be frequently invoked by those defending A2P1 claims on behalf of public authorities, the Strasbourg Court gave a strikingly account of the concept of ‘respect’ as deployed in A2P1 and the margin of the appreciation enjoyed by member states in respect of that provision of the Convention [at §61]:

“…“respect” in Article 2 of Protocol No. 1 means more than “acknowledge” or “take into account”; in addition to a primarily negative undertaking, it implies some positive obligation on the part of the State…

Nevertheless, the requirements of the notion of “respect”, which appears also in Article 8 of the Convention, vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching”

Turning to the facts of the application, the ECtHR first noted that there was no evidence before it that the display of crucifixes in the classroom had any actual influence on pupils or impacted upon the formation of their religious or philosophical convictions [§66]. Secondly, it emphasised CoE member states’ margin of appreciation in regulating the school environment and the content of the curriculum, asserting in particular that there was no European consensus as to the proper role of religious symbols in State education [§§69-70 and 76]. Thirdly, it sought to distinguish the presence of what it characterised as ‘the essentially passive symbol’ of the crucifix in the classroom from the exposure of children to didactic and potentially proselytising indoctrination [§§71-74]. Fourthly, it relied on the fact that the evidence indicated that in practice the Italian state education system was pluralistic and allowed for exposure to, and expression of, a wide range of religious convictions and philosophies and that in any event Mrs Lautsi retained her right, both legally and in practice, to direct her children’s religious and/or philosophical development in line with her own convictions [§§74-75].

The retiring, but not retiring concurrence of Judge Bonello

It would be remiss to offer any account of Lautsi without drawing the reader’s attention to the astonishing concurrence of Judge Giovanni Bonello. Judge Bonello (deservedly crowned the 2008 Johnnie Walker man of the year: https://www.timesofmalta.com/articles/view/20081020/local/giovanni-bonello-is-johnnie-walker-man-of-the-year), has now retired from the Court and is known to enjoy a colorful phrase. However, the decision of the Second Section of the Strasbourg Court, and the suggestion that the presence of the crucifix in state schools could be construed as a breach of the ECHR, spurred him to unprecedented rhetorical heights. Edited highlights of what is likely to be a valedictory address include the following:

“”A court of human rights cannot allow itself to suffer from historical Alzheimer’s”…”No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity”…”A European Court should not be called upon to bankrupt centuries of European tradition”…”No Court… should rob the Italians of their cultural personality”…”…a Court in a glass box a thousand kilometers away has been engaged to veto overnight what has survived countless generations”…”The Court has been asked to be an accomplice in a major act of cultural vandalism”…”It is uninformed nonsense to assert that the presence of the crucifix in Italian schools bears witness to a reactionary fascist measure imposed in between gulps of castor oil by Signor Mussolini. His circulars merely took notice of a historical reality that had preceded him by several centuries and, pace Ms Lautsi’s anti-crucifix vitriol, may still survive him for a long time.”

Commentary

A2P1 and State education

From the perspective of the education lawyer, the most interesting passages of the judgment are to be found at §§61-62 and 70 where the Strasbourg Court frames the extent of the restrictions which A2P1 imposes on religious education in State schools (broadly, education is permitted but indoctrination is not), the limited nature of the relevant parental rights and the, generally wide, margin of appreciation which States enjoy in this field of activity.

The wider milieu

Lautsi is a striking example of, what appear to be increasingly frequent, confrontations between the Strasbourg Court and domestic Governments and superior courts. This phenomenon will be familiar to anyone in the UK who has followed the recent controversy concerning the ECtHR’s decision that the UK’s current blanket ban on serving prisoners voting in elections is a breach of the ECHR.

On one view, Lautsi might be considered as an example of what a sufficiently robust response to errant holdings of the Strasbourg Court can achieve: in the face of unified opposition from the Italian Government and senior judiciary the Grand Chamber arguably had no option but to retreat from the position adopted by the Second Section. This scenario, of domestic politicians and the judiciary uniting in opposition to the position adopted by the Strasbourg Court, has not generally been a feature of the issues which have to date arisen in the UK, where the general pattern has been for the ECtHR to deliver decisions which enhance judicial power and/or competence which (perhaps unsurprisingly) meet with the support of the judiciary but are opposed by elected politicians.

A possible analogue might be found in the pending judgment of the Grand Chamber in Al-Khawaja v. United Kingdom (Application no. 26766/05), where the Strasbourg Court is to determine whether English law’s treatment of the admissibility of hearsay evidence is compatible with Article 6 of the Convention. The Fourth Section had previously held that it was not, but this was followed by the unprecedented judgment of the UK Supreme Court in R (Horncastle) [2009] UKSC 14, in which a nine-strong bench of Justices exhaustively analysed the Strasbourg jurisprudence and, in effect, pleaded with the Grand Chamber to reverse the Fourth Section’s judgment.

It is interesting to contrast the stance of the UK Supreme Court, with its emphasis on rigorous forensic analysis of the incoherence of the Strasbourg Court’s case law and, always deferential, request for further reflection (with no real suggestion that it will not fall into line with the ECtHR’s ultimate decision) with the altogether blunter and more robust stance adopted by the Italian Supreme Court. Lautsi might be read as showing that the ‘Italian approach’ works. Judgment in Al-Khawaja is expected imminently this year and it will be interesting to note whether the approach of the UK Courts proves similarly effective.

The European Court of Human Rights has handed down judgment in Ali v United Kingdom (Application no. 40385/06, 11 January 2011). The decision is the final instalment of the litigation which culminated at the domestic level in the judgment of the House of Lords in Ali v Lord Grey School [2006] UKHL 14.

Perhaps unsurprisingly, the ECtHR has upheld the conclusion of the HoL (Baroness Hale dissenting in part) that no violation of the A2P1 right to education occurred.  However, in certain significant respects the reasoning of the ECtHR diverges from that of the HoL. In particular, it provides important guidance on: (i) the circumstances in which school exclusions are compatible with A2P1 rights; and (ii) the content of the right to education.

Facts

The applicant was suspected, having been spotted in the vicinity, of setting fire to a bin on school premises and became the subject of a police investigation. The school determined that he must be excluded until the investigation was complete.

There were various procedural defects in the exclusion process. Amongst other things, in breach of statutory requirements, the applicant was not initially informed of the term of his exclusion. This is perhaps unsurprising, as the school could not predict when the police investigation would be complete. The exclusion resulted in the applicant being absent from school in the run up to important exams, albeit that he was allowed to return to school to take the tests.

The school made efforts to provide alternative educational support during the exclusion, but this was not taken up. The school also tried to bring the applicant back to school at the earliest possible opportunity (as soon as the police investigation was complete). However, the applicant and his parents did not cooperate, failing to attend a scheduled meeting. Ultimately, the applicant was removed from the roll at Lord Grey and later transferred to another school.

The HRA 1998 and the right to education: money, money, money…

The applicant initiated a damages claim under the Human Rights Act 1998 relying on the A2P1 right to education. The school had breached his A2P1 rights during the course of his exclusion, so it was said. Monetary compensation was asserted to be the appropriate remedy. The claim enjoyed some success before the Court of Appeal, but was unanimously rejected by the HoL.

Off to Strasbourg

As is now the norm for unsuccessful HRA claimants, the claimant promptly sought a more advantageous, and lucrative, outcome from the European Court of Human Rights in Strasbourg.

The ECtHR accepted that disciplinary measures such as suspension or expulsion are inherent in any system of organised schooling and that such arrangements allow schools to achieve the very object for which they exist: educating their students. However, the rules concerning exclusions, and the manner in which they are imposed, must be foreseeable (reasonably clear and certain) and proportionate to the aim pursued.

The exclusion in this case pursued a valid legitimate aim – facilitating the criminal investigation. Moreover, the term of the exclusion was foreseeable. The applicant was told at the outset that he could not return until the investigation was complete and, objectively, it was reasonably apparent that the process was unlikely to be concluded before the end of the school term.

In assessing the proportionality of an exclusion the ECtHR will consider a number of factors: (i) extent of applicable procedural safeguards; (ii) duration of the exclusion; (iii) extent of applicants co-operation with any re-integration efforts; (iv) steps taken to minimise the effect of the exclusion; (v) adequacy of any alternative education provided; and (vi) extent to which the rights of third parties are engaged. The last two factors will be given particular weight.

In a nutshell, as is so often the case with the Strasbourg Court, judicial scrutiny will be highly fact sensitive. Maximum flexibility is reserved to the reviewing court, albeit at a regrettable cost to legal certainty. To a very considerable extent, each case will turn on its own facts.

Applying its analysis to the facts, the ECtHR had no difficulty in dismissing the claim. The head teacher had attempted to bring the applicant back at the earliest possible opportunity, but the applicant and his parents did not cooperate. The school offered alternate educational arrangements but these were ignored. It was true that there had been procedural shortcomings but these must be viewed in light of the exceptionally difficult circumstances which the police investigation created. For these reasons, the exclusion was proportionate.

Commentary

The multi-factorial approach adopted by the ECtHR may provide some encouragement to HRA damages claimants, as it signals that a sufficiently ‘strong’ set of facts may found a successful claim. However, this is offset by the Court’s treatment of the application. The ECtHR’s approach is commendably pragmatic, and not insensitive to the invidious position in which the school was placed by the police investigation. Notably, the Court rejected an overly fastidious approach in its review of the various procedural defects during the course of the exclusion process.

Provided schools reserve exclusion for serious cases in which less intrusive measures are inadequate, restrict the removal to as short a period as possible and make sensible efforts to provide alternative educational support, they should find themselves on sound legal footing.

It should also be noted that the Court accepted that A2P1 does not require that students have access to the entirety of the national curriculum during temporary exclusions (this is most immediately relevant to the pupil referral unit, where the full national curriculum is not available). However, the ECtHR gave a strong indication that the position would differ in respect of permanent expulsions.

The judgment is also of wider interest as regards the content of the A2P1 right to education. It has long been debated (see the previous blog posts by Peter Oldham QC and Ed Capewell covering the 2010 decisions of the Supreme Court in A v Essex CC and JR 17) whether the content of the right which A2P1 protects is fixed by reference to the standard of education guaranteed by law in the domestic legal system or, rather, is restricted to some (lower) objective minimum standard. The ECtHR, without detailed reasoning or reference to authority, now appears to have departed from its previous case-law and to have accepted the former formulation. Consequently, in principle, it would seem that a student might be able to pursue an HRA damages claim if educational provision to which he is legally entitled under domestic law is not forthcoming e.g. consider certain legal rights to SEN provision. It can be expected that this argument will be further explored in the domestic courts in the near future.

Joe Barrett