In my post on 19 May (below), I highlighted that a decision of the First-Tier Tribunal that Beis Aharon Jewish school was in breach of various independent school standards was reached without consideration of Article 9 of the European Convention on Human Rights, which provides for a right to manifest one’s religious belief. Section 6 of the Human Rights Act 1998 requires Tribunals themselves to make decisions in accordance with human rights like Article 9.
In a very recent appeal against a decision to deregister a school whose curriculum centred around the Muslim faith, the First Tier Tribunal has attempted to apply Article 9. It appears, however, to have got it wrong.
In Cityside Primary Trust v Secretary of State for Education [2016] 2600.INS, the Tribunal decided to uphold a decision of the Secretary of State to deregister Ayasofia Primary School, an independent school of some 80 pupils. It was not registered as a faith school, but it is clear that all or the majority of its pupils were educated in accordance with Muslim belief and practice. A number of failings – in the sense that independent school standards were not met – were accepted by the school. But it argued that its deregistration would be a disproportionate interference with the Article 9 rights of its pupils. It said that the Secretary of State should instead give it more time to make improvements.
Rejecting that argument, the Tribunal said this in paragraph 46 of its decision:
“[A witness from the school] stated that Ayasofia followed a curriculum with particular characteristics, however, the evidence does not lead us to conclude that its religious instruction or ethos was outside the range of provision that would be available in a school with Islamic faith characteristics. Evidence was provided that the London Borough in which Ayasofia is situated has many maintained schools for primary aged pupils which, on balance of probabilities, will have a high proportion of Muslim pupils. Further, there are a number of independent Islamic primary schools. We do not consider the rights highlighted by [Counsel for the school] irrespective of other considerations require a different approach by the Secretary of State to regulation of Ayasofia. Whilst closure might inconvenience its pupils it does not deny their or their parent’s rights to the exercise of their religion and education. The effect of enforcement action relates to a particular school in this case for failure to meet National minimum standards. Whilst it was asserted the school matches the needs of a particular section of the religious community, we find the maintenance of National minimum standards by deregistration within the proportionate powers of the Secretary of State”.
A central – if not the only – part of this reasoning is that deregistration would not be a breach of pupils’ Article 9 rights because they could go to another school.
In light of the decision of the House of Lords in R (Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 [2007] 1 AC 100, this reasoning may previously have been sufficient to dispose of an argument of breach of Article 9. In Begum, a majority of the House of Lords held there had been no interference with a pupil’s Article 9 right given that she had a choice of two alternative schools where she would have been permitted to wear the particular Muslim dress (the jilbab) which she wished. But it cannot now stand in light of the decision of the Grand Chamber of the European Human Rights in Eweida v UK 57 EHRR 8 [2013] IRLR 231. The effect of that Court’s analysis is that the possibility that a pupil (or employee) may avoid interference with their right to manifest their religion by moving school (or job) – if indeed that is true – is simply a factor to be weighed in the balance when considering the proportionality of the action which affects them.
Here, the Tribunal needed to consider, with care, whether the deregistration of the school (as opposed to giving it time to improve) was truly a proportionate way of achieving the aim pursued by the exercise of the power to take action against it (which aim was, presumably, the maintenance of standards in independent schools). In the language of Lord Sumption in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 [2014] A.C. 700, it had to consider, among other things, whether deregistration would strike “a fair balance … between the rights of the individual and the interests of the community”. An understanding of the question it was required to ask itself, still less a properly reasoned answer to it, is regrettably lacking from the Tribunal’s decision in this case.
Tom Cross is co-author of the leading practitioner text on religious rights: The Protections for Religious Rights: Law and Practice (OUP: 2013).