The Case of Begum: Muslim Identity Under United Kingdom and European Union Law

Introduction

The restrictions on women are universal in a sense that they can arise both in East and West in the form of traditions, culture, religious values, and ‘modern form of suppression’ which will be discussed in this paper. The variety of this suppression can vary greatly but one common element that underlines all such form of suppression is the insistence of the Man in authority what form of social identity is acceptable for a woman to adopt. There has been a lot of intellectual chatter on the issue of identity, feminism, pluralism, and multiculturalism but what separates the issue of identity for a Muslim woman from other minority rights is the fear of fundamentalism. The recent War on Terror has created an image of Islam and Muslim identity that is seen as a threat to the society in particular and the world in general. This fear is not only isolated to the West but a lot of modern Muslim countries are struggling to form their Muslim identity in such a way that their identity will not be seen as a threat to the society and the world. The scope of the discussion of Muslim identity has to be limited to a certain case so the legal reasoning can be evaluated against the ideas of identity, citizenship, and human

rights. This paper attempts to evaluate one such form of restriction that has been sanctioned by the English Courts. The case under study is R v Headteacher and Governors of Denbigh High School (hereafter: the Begum case). The issue in this case was that Begum claimed that she was denied her right to exercise her belief when she insisted on wearing the Jilbab to a public school. Contrary to the popular view, in this case, the restriction on a Muslim girl was not imposed to keep public order or safety of the students. It may be assumed that the restriction manifested itself form a paternalistic and purposive approach taken by the House of Lords. Begum did see some hope for her rights by the favourable decision made by the Court of Appeal. The Court of Appeal decision was overturned by the House of Lords by a unanimous majority holding that the school was justified in requiring Begum to adhere to the school uniform policy. The problem with such an approach is that it disregards any historical reference to the Muslim practice. As Dr. Rowan William points out that there is a form of contemporary discussion that promotes the idea of a citizenship, which means to simply be under the

uniform law of the sovereign state. He states that this idea is problematic because the focus is on the action itself without taking into consideration the history of the individual or the origins of the practice, which can provide the context in which the 1 action is performed. The idea of historical and contextual understanding of the law can be linked to the piecemeal change and the history of gradualism in the proud common law tradition. Geary points out that the common law tradition connects directly with the idea of 2 constitutionalism and British identity. The paper presents the case that the meaning of both constitutionalism and British identity has to change under the human rights movement otherwise common law will leave a legacy similar to the colonial era. The culturally insensitive law made by

the House of Lords in the case of R (on the application of Begum) v Governors of Denbigh High School promotes the idea that certain minorities are not under the constitutional 3 protection of common law. There are two points that need to be made at the start of the discussion. First, there cannot be an objective analysis of the issue if the individual claiming a religious belief is thought of as an imbecile. The goal of human rights and feminism is to promote autonomy and dignity of a person. The whole media circus and the debate over the religion and ideology put the claimant as a person in the background. This media frenzy is seen as a distraction from the real issue of an individual’s 4 choice by the feminist theorists. Shabina Begum had felt the need to make this clear in an interview on TV that she is an intelligent person capable of making her own decisions. Perhaps the House of Lords should have made that point on her behalf in

a non-dissenting way. Second, the argument is borrowed from Gearey who argues that the veil cases do not simply provide a clash between secular and religious law, instead, these cases take us into the theories of contemporary common law based on 5 human rights and community law. This form of common law can be distinguished from the traditional form of common law that is driven by the authority of the state over the citizen. This is clearly not the case anymore because the community law restricts the states and mandates them to uphold citizen rights, There is a third dimension to the study of the issue of religious freedom that connects with the good form of law and is borrowed from David Mead, who presents a strong case in favor of process-based review of public authority decisions under the Human Rights Act. This line of reasoning shows that such decisions are not only culturally insensitive in a 6 non-plural sense but they are also bad law.

The paper will look into the question that whether Muslim practices are compatible with UK and EU law. There are a number of Muslim practices that can be argued through an academic paper but the practice of veiling is very interesting. I believe there are two reasons that make this an interesting choice for the academic discourse. The first reason is that the act of veiling is directly connected with the choice of the individual. It is a very personal act and in no way affects others in the society. If it is acted out with autonomy and dignity It can be compared to celibacy in Buddhism or non violence in Gandhi’s teaching. Second, the act of veiling invokes very strong images of suppression by religion in women in the West. Even, the contemporary Muslim countries like Turkey are trying to understand the phenomena of veiling when acted upon by women with their own choice. Thus, the issue of veiling becomes an interesting choice for the study of religion in UK. The study will be done through a critical analysis of the Begum case. The case will provide a microcosm benchmark to the understanding of the relationship between the individual claimant, state and the Courts.

Civil Space and Identity

Before we get into the detailed analysis of the judgment in the Begum case, it is important to understand the background theme of civil space and identity set for the discussion of religious freedom. This non-traditional way of looking at the law is motivated by the human rights movement that has been sponsored by the community law and which umbrellas the freedom to exercise religion. Gearey argues that our understanding of the law is limited because we don’t consider the civil identity that comes into being from the application of law in the society. This non-traditional form of understanding of the law can be associated with Dr. Rowan William`s idea of space provided by law for citizens to practice their identities. He states that the primary duty of rule of law is to provide the space were these identities can be formed with dignity. He further argues that such a restriction is not only on the secular state but the religious communities too. They are all reminded of the aspects of human dignity to be respected when this space is taken 7 away from a member. The idea of rule of law is

itself now seen embodying human rights in its 8 definition. The paper will argue the Begum case in this newfound space provided by the community law to the individual and the basic dignity provided to the individual under the newfound definition of the rule of law. Geary points out that the state has taken over the function of applying law from the Church. He argues that once we consider the civil identity that comes into being through the state; the case of Begum can be seen in a much broader context, where state sovereignty is subject to community laws that directly guarantee human rights for individuals. For him, the broader phenomenon at work is the reformation of society that may enable a 9 European Islamic identity. The power of reformation of the state mentioned by Gearey overtaken by the human rights can be better understood by the limited sovereignty of the states

10 under EU law. According to the Van Gend en Los , EU case law has taken the form of a new legal order 11 that has limited the sovereignty of the EU states. The power to allow citizens to practice their human rights has been transferred to the community law and is enforced by the community through national laws like Human Rights Act 1998 that provides a wider jurisdiction to the national Courts. The focus has turned away from the state and is now on the citizen or individual who must negotiate this power from the old conservative structures of the state that are still serving in complete obedience to the state. I will like to argue that Begum was such a case that provided an opportunity to the House of Lord to enable a negotiation between the traditional authority-driven-state and the contemporary citizen who is trying to exercise her autonomy under community law. The contemporary state cannot be completely ruled by law without its commitment to human rights. Lord Bingham argues human rights as one of the core principles of rule of law in his book The Rule of Law. He states, “The law must

afford adequate protection of fundamental human 12 rights.” He also quotes Professor Raz who has elegantly put the importance of human rights in the following way: A non-democratic legal system based on the denial of human rights, on extensive poverty, on racial segregation, sexual inequalities, and religious persecution may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. This does not mean that it will be better than those Western democracies. It will be an immeasurably worse legal system, but it will excel in one respect: in its conformity 13 to the rule of law. Sadly, Lord Bingham was unable to fulfill his own commitment to the importance of human rights and

the negotiation between the state and the individual during the case of Begum. After reading Lady Hale’s opinion, it appears that she saw the opportunity for the abovementioned negotiation to some extent; however, she failed to provide a complete dissent. Lady Hale and Lord Nicholls expressed that there has been interference to Begum’s right to exercise her belief, but it was a justified one. However, the case did not provide much reasoning on the competing rights that could have provided a justification for curtailing of Begum’s rights. Lord Nicholls took the view that not finding interference will be to underestimate the difficulty Begum would have had by changing 14 schools due to her religious beliefs. The statement, however, does not provide much comfort to the claimant trying to exercise her religious rights. Another important discussion while discussing Begum’s case is the role of religious scholars. Gearey argues that religious scholars need to interpret the practices from sacred text that may

15 constitute as manifestation of belief. During the discussion of whether or not the school dress code was closer to teachings of Islam than Begum’s jilbab, scholars agreed that jilbab was considered a religious dress closer to the teachings of Islam. However, the Court took into account neither the scholars’ opinion nor the authority of the religious institutes. By taking this course, the Court passes on the opportunity to enable a negotiating dialogue between the religious scholars and the secular school authorities. This narrows down the role of non-state actors and citizens who affiliate themselves with these non-state actors. This narrowing of the role is a true detriment to the practice of rights under the laws of the state. Begum’s role was narrowed in such a way when she was trying to form or manifest her identity according to her beliefs. These beliefs where legitimate in a religious sense and there could have been a compromise between the religious and state authorities. Even a stark rejecter of plural jurisdiction like Griffin argues that rights compete with each other and that they may compete with

other norms. He further argues that there is no absolute form of human rights but weighty options 16 to override one rule over another. Even for this competitive approach of human rights there needs to be a weighting of human rights. This weighting process will have to consider the context in which these rights arise and their historical and civil background. If the counter argument is that the Courts cannot take a religious stand on the issue or cannot be influenced by a religious council. Then the issue of jilbab has to be viewed from a purely human rights perspective. McGoldrick states that human rights have the language, discourse and [sometimes] institutional structures to provide a balance between 17 competing rights. This goes back to Gearey’s point that human rights are going to form the bedrock of the relationship between the state and

religion. In doing that, it is important to understand this relationship from a human rights perspective. The sovereign state should not act as a sole authority in dictating what constitutes as an acceptable religious practice in state schools. This line of reasoning points back to the importance of negotiation, between the state and the citizen, to settle human right issues. The Courts can act as enablers through law of the land, which governs not only the majority but also have, to take into account the protection of the minority. Mead presents the conflicting views on the rights enforcement authority of the judiciary as some will argue that the judiciary is not capable of making these decisions because the judiciary is inherently non-plural in their law making, there is a clear selection bias, and the judges are unselected. While others will see the judges as the sole authority capable of bring this change. He further quotes Conor Geatry who states that the genius of HRA is that it strikes a balance by giving power back to the political authorities as the 18 judges take the high ground. I find myself taking the later view because I truly believe in the human

rights movement and its ability to provide a check against the tyranny of the government through the common law reasoning of the judicial branch. To me the political realm is crowded with bills of the majority reincarnating the will of the loud voices of the majority. I am skeptic of the minority`s capability of making such a loud noise, especially when they are excluded from the society due to 19 racial or religious discrimination. If we take a multicultural point of view, Kymlicka states that people should live their lives form inside as how they have endorsed the values they choose for themselves instead of being guided by a higher power. He further elaborates that individuals are capable of revising the understanding of their beliefs and they should be given the space to do 20 so. The guiding higher powers in our case are the human rights and the rules dictated by the state

through the school authorities. Which iterates the importance of competing rights between the state and the individual. The second aspect of Kumlicka`s point of view focuses on the autonomy and dignity of the individual when they are trying to manifest their beliefs in practice. This line of reasoning eliminates any doubts that the House of Lords might have about Begums behavior and how she has changed her religious belief, as she has grown older. The fact that she wore the school uniform happily and without any complaint two 21 years prior to the issue becomes relevant. Perhaps the non-plural view of the Court can be seen clearly because there was no mention of the relationship, between the age of a Muslim girl and her observance of the practice of veiling in the House of Lord`s judgment. Begum started wearing the jilbab exactly at the same time when majority of the Muslim girls start observing the practice of 22 veiling. This disregard of a common muslim practice by the House of Lord, it appears that the fear of fundamentalism has so blinded the West in

general that the Court could not even consider the historic irony that can be seen by the relationship between the Monarch and religious symbols, like the veil and the crown in the common law 23 traditions. Although, Gearey does not agree with the market mechanics used by Kymlicka when it comes to human rights, I would like to argue that the space or mechanism provided by Kymlicka can be thought of, as a metaphor, which can be provided by the Courts and the state to individuals trying to exercise their rights. The responsibility of the Court has been expanded by the state through the Human Rights Act 1998 and I do not see much strength in the argument laid down by Lord Bingham where he excuses himself and the other lords from the responsibility of deciding on the issue of Islamic 24 dresses in public schools. If I put it broadly, the

state should provide a space, so that individuals can practice their freedom of religion and revise their beliefs when they desire. The act of exercise and revision leads to the autonomy and dignity of an individual. Parekh provides us with another multicultural viewpoint that puts an emphasis on a cultural dialogue that realizes the comparative nature of the moral discourse. He states that if human beings are language using, symbol and ritual creating creatures then their choice should be dignified and respected. Gearey states that Parekh`s view is much closer to the issue of using jilbab (as a symbol) for European Muslim identity. He also states that the fundamental rights are necessary to protect against the populous view and so the minorities can create a dialogue on equal terms with 25 the majority. The reasoning of the case can be criticized from a post Human Rights Act point of view. At the 26 outset of the Begum case judgment Lord Bingham states that the House of Lords cannot give a

judgment on whether the Islamic dress should or should not be allowed in the schools of this country,as this case is not about that. It is important to stress at the outset that this case concerns a particular pupil and a particular school in a particular place at a particular time. It must be resolved on facts which are now, for purposes of the appeal, agreed. The House is not, and could not be, invited to rule whether Islamic dress, or any feature of Islamic dress, should or should not be permitted in the schools of this country. That would be a most inappropriate question for the House in its judicial capacity, and it is not one which I shall seek to address. These remarks were made in a post Human Rights Act 1998 era, where judges have been given the judicial power to interpret law in accordance with the human rights conventions. I would like to argue that the very opposite should have been the Court’s approach. As discussed above, the Courts need to provide the space and encourage the dialogue between the minority and the majority. The case of

Begum also raises the question whether the House of Lords is keeping up with the Strasbourg jurisprudence in accordance with the mirror principle. The principle was laid out by Lord Bingham in Ullah v Special Adjudicator [2004] 27 UKHL 26, [2004] 2 AC 323. Mead argues that ECtHR has never attributed different roles and responsibilities to different public authorities instead they have always taken the case against the state when the rights of the claimant had been 28 infringed by any of its public authorities. This leads us in to the discussion of the House of Lords in the Begum case regarding the ability of the headmistress to dictate a school uniform for Muslim schoolgirls. In Paragraphs 5, 6, 7 and 8 of the Begum case Lord Bingham places significant faith in the head teacher and the school governing body`s ability to dictate what constitutes Muslim religious dress for the girls

in the school. Emon provides an insightful analysis of the role of Mrs Bevan in the case of Begum and how the Court saw her as one of ‘Us’. He states that the Court saw her as an educator, successful administrator and as someone who had taken extraordinary measures in devising a uniform that is culturally sensitive to the Muslim community by working with the governing board of the school. He also states that the Court also saw her as one of ‘Them’ because she has worked with the Bangladeshi Muslim community and lived in South Asia and was familiar with the Muslim traditions. However, Emon also points out how the Court of Appeal also limited her role when Lord Justice Brooke remarked that she does not have the knowledge of the Muslim theology and is not an 29 authority on the issue. This can be seen from the following extracts from the judgment. In Paragraph 6 Lord Bingham states: “The head teacher believes that school uniform

plays an integral part in securing high and improving standards, serving the needs of a diverse community, promoting a positive sense of communal identity and avoiding manifest disparities of wealth and style.” And in paragraph, 7 he highlights how the school uniform was re- examined by the governing body. In 1993 the school appointed a working party to re-examine its dress code. The governors consulted parents, students, staff and the Imams of the three local mosques. There was no objection to the shalwar kameeze, and no suggestion that it failed to satisfy Islamic requirements. The governors approved a garment specifically designed to ensure that it satisfied the requirement of modest dress for Muslim girls. Following the working party report the governors, in response to several requests, approved the wearing of head- scarves of a specified colour and quality. The approach taken here by the House of Lords provides a very limited space to Muslim girls to manifest their beliefs. The facts present a picture

that the school authorities are legitimate in deciding how the beliefs of a Muslim girl can manifest in the form of a dress. As stated above through the reasoning that the Court places significant trust in the judgment of the head mistress and the school governing body to decide what constitutes as an acceptable school uniform. The Court takes the viewpoint of Kelsen to the issue where the official (Mrs. Bevan ) is able to sanction the citizen and where the legal norm arises out of the sanction of 30 the official. The problem with such an approach in a post Human Rights Act era is that it curtails the citizen from all the rights that have been bestowed on him in contrast to the conduct of the official. The citizen becomes a ‘delict’ committing sanctioned participant in the legal norms. This presents an authoritative and restrictive social order where the citizen is not able to exercise their true identity.

As argued by Gearey the House of Lords is determined in keeping the power of reformation in the society with the state or the state schools and are not willing to hand it over to the individuals in the post human rights Britain. It seems like the Court looks at Strasbourg to understand the rights it has bestowed on the European citizens and relies on the public authorities to deliver on those rights. The problem with this passive approach is that the Strasbourg CourtCourt is relying on the domestic Courts and parliaments for the fulfillment of conventional rights and cannot directly provide more then a framework for these rights to flourish. On the other hand the public authorities need more guidance from the Courts on how to act in their new role. School Uniform debate It was also found in the facts that the head teacher also believed that a uniform was necessary for inclusion and social cohesion. However, I would like to argue otherwise. The authorities and some of the parents also felt that allowing the jilbab would segregate certain groups. The Court may have confused these facts with the facts of Murphy v

Ireland [2004] 38 EHHR 212 where the domestic and Strasbourg Court held that ban on religious 31 advertising is valid because it can be divisive. A citizen’s freedom to expression cannot be the same as his freedom of religion according to the ECHR article 9 and 10. The facts note that the school hadexperienced some ill effects in the past because of some groups identify themselves along the racial lines. This is entirely irrelevant because religious identity cannot and should not be confused with racial identity. The facts also state that the school uniform had been designed to avoid the creation of sub-group identities. I feel very strongly against the stance taken by the school to restrict a pupil’s ability to form identities under the space provided by the school. I find little sense in the process of seeking and presenting facts to support the reasoning that a school uniform is justified because it eradicates social class among students. This line of reasoning is overly simplistic, as it is based on an assumption

that the student cannot reflect their social status in any way other then a uniform. Not only do uniforms fail to eliminate social classbut they also fail to foster social cohesion in the society because the uniform in the Begum case was not sensitive to all Muslim cultures. The Court failed to consider the intra community tension between South Asian and 32 Arab Muslims. Thus, the uniform debate for Muslim minorities in UK becomes a superficial phenomenon, ignoring the many layers of identity, which are incorporated in the rich culture and traditions of the Muslim world. The State of Law or the Law of State Article 9 of the European Convention on Human Rights (ECHR) defines freedom of thought, conscience and religion as following: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his

religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights 33 and freedoms of others. Griffith-Jones states that the natural question that arises form this convention is what shall count as a 34 manifestation of belief. So, in regards to the right to manifest the claimant needs to show to the Court that her right has been infringed and the state bears 35 the burden to prove otherwise. Lord Bingham

pointed out that the question to be answered in the case of Begum is weather the respondent`s right to manifest her religious beliefs though her dress can be limited within 9 (2) and would the limitation be 36 justified. It is common ground in these proceedings that at all material times the respondent sincerely held the religious belief which she professed to hold. It was not the less a religious belief because her belief may have changed, as it probably did, or because it was a belief shared by a small minority of people. Thus it is accepted, obviously rightly, that article 9(1) is engaged or applicable. That in itself makes this a significant case, since any sincere religious belief must command respect, particularly when derived from an ancient and respected religion. The main questions for consideration are, accordingly, whether

the respondent's freedom to manifest her belief by her dress was subject to limitation (or, as it has more often been called, interference) within the meaning of article 9(2) and, if so, whether such limitation or interference was justified under that provision. Before Lord Bingham makes this point he refers to Lord Nicholls in R v Secretary of State for Education and Employment to emphasize the 37 importance of the right to freedom of religion. In that case, Lord Nicholls highlights that the convention right is fundamental to a civil and tolerant society.However, he distinguished between freedom of belief, which is absolute, and freedom to 38 manifest belief, which is qualified. He also points out the significance of the convention right by stating the fact that this right is one of the only two rights that have been mentioned in the Human 39 Rights Act 1998 in section 13(1). Other than Lord Bingham Lady Hale not only agrees with the distinction made by Lord Nicholls, she also

connects article 14, that protects religious and other freedoms against the discrimination of the state of 40 the convention, with article 9. 41 Lady Hale in her lecture points to the remarks made by Lord Justice Law in the case of McFarlane 42 v Relate Avon Ltd , where he states that: In a free constitution such as ours there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian's right (and every other person's right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only

that they are based on religious precepts. These are twin conditions of a free society. There are two points that can be made from the above statement. First, the law provides vigorous protection to hold and express a belief. This can be compared to the comments made earlier by Lord Nicholls that the right to hold a belief is absolute. On the contrary, the right to manifest and express a belief is not only qualified but also protected by common and community law. Second, The protection of this freedom cannot be always justified. Lord Justice Law argues that the religious belief cannot be accommodated solely on the basis of their religious reasoning. On the contrary, there needs to be an objective, compulsory legal 43 framework. One of the agreed facts in the Begum case was that the school in question was not only a Muslim majority school but the reason they had such high number of Muslim students was because the school in question had sought an exemption from the daily Christian prayer. The reason I lay out

this fact is to point out that the children in this school were already excluded from the mainstream schools in UK. This exclusion existed because the students did not agree with the daily Christian prayer in the mainstream schools. The decision of the Begum case further excludes a citizen from manifesting her belief in an already excluded community. This layered additional act of exclusion provides little reassurance when Lord Bingham attempts to isolate the school in the facts of the case that they apply the facts only apply to this school. He makes these remarks at the start of the judgment. So, it can be seen that the facts of the case did not arise in a situation where there was no role of religion. To the contrary not only the school was a Muslim majority school but it also accommodated (in their own parental sense) Muslim schoolgirls in uniform and excluded them from the Christian prayer. It can be safely concluded that the sole purpose of Begum to bring her claim was not based on a unique freedom to manifest her religious beliefs. Begum’s solicitors alleged that the school had violated the rights of the claimant under article 9, 8,

14, and article 2 of Protocol 1 of the European Convention. The school authorities sought independent advice on weather school uniform was in conflict with the Islamic dress code. The two mosques advised that it did not, although the mosque Imams did recognize that the view provided by the religious authorities to the school authorities, did exclude some school of thoughts in Islam. The same religious authorities stated later in the case that jilbab was the appropriate dress for a mature Muslim woman, when they were asked by Begum’s solicitors about the jilbab and the school uniform specifics. The sought advice was passed on to the 44 school authorities, but they refused to accept it. The respondent instructed new solicitors. On 31 May 2003 Mr Basharat Ali of Messrs Adams (later Aman) wrote to the Islamic authorities previously consulted by the appellants, seeking their advice on the respective merits of the shalwar kameeze or the jilbab from an Islamic perspective… The respondent's solicitor obtained opinions from three sources (two

of them Imams previously consulted by the appellants) to the effect that the jilbab was the appropriate dress for mature Muslim women. This advice was passed on to the appellants, who did not accept it but repeatedly urged the respondent to return to school. The chairman of the governors reviewed the matter and supported the action of the head teacher. It is clear from these facts that the case was not decided based on religious council. If we are to take into consideration the views of Lord Justice Law then these facts are not even relevant to the case. There was no need to sought council from religious authorities by the school or Begum’s solicitors and there was no need to mention them in the judgment of the case by Lord Bingham. This raises the question is there a need for a democratic agenda in finding human rights that are very individualistic in nature? Even, taking a more objective view (excluding religious counsel) of the situation does not necessarily bring about a different result in a clear consistent way. As we can see below form the judgment of the Court of Appeal

that was overruled by the House of Lords. Mead highlights the flawed decision-making of the school that was highlighted by the Law Lords in the reasoning of the Begum case in the Court of Appeal. The Court of Appeal found against the school because the school`s decision-making 45 process was flawed. The Court of Appeal in 46 Denbigh provided a set of questions that decision- makers have to ask when taking convention rights into consideration. The questions put forth by Brook L.J. require the decision maker to consider and establish the convention that might be affected by the decision, any violations of the convention, lawfulness of any interference because of the decision, legitimate aim to be pursued by the interference, and consideration for a democratic 47 society. Contrary to the decision in the Court of Appeal, the facts in the House of Lords decision, present a picture that the state authorities influenced by the

majority can ignore or exclude an individual’s claim to exercise her religious beliefs. The House of Lords base this reasoning on a democratic framework applied to religious views and their manifestation by individuals. These facts attempt to undermine an individual’s right to manifest her beliefs, if the beliefs are deemed unacceptable by the majority (in her religion). According to the decisions of the House of Lords the public authority is not required to look into the above question criteria established by the Court of Appeal to keep 48 into consideration human right violations. According to Lord Bingham what matters is not the decision making process or its quality but the 49 outcome of the decision. I consider that the Court of Appeal's approach would introduce "a new formalism" and be "a recipe for judicialisation on an unprecedented scale". The Court of Appeal's decision-making prescription would be admirable guidance to a lower Court or legal tribunal, but

cannot be required of a head teacher and governors, even with a solicitor to help them. If, in such a case, it appears that such a body has conscientiously paid attention to all human rights considerations, no doubt a challenger's task will be the harder. But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it. This view has been criticized by Mead when he states that even the supporters [Tom Poole] of the House of Lords decision, favor a judicial approach that supports the decision maker to engages in right based analysis but on the same hand do not require 50 them to conduct the analysis. This line of reasoning is not bound to bring any consideration of rights based analysis of the decision by the decision maker. This process of decision-making can be compared with the statement of compatibility that is required by the ministers when they draft new

legislation in accordance with the Human Rights Act. Article 6 of the Human Rights Act states that ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right’. This article is very relevant to the discussion of the Begum case because it restricts public authorities from acting in accordance with convention rights. However, Lord Bingham adopts a purposive 51 approach to the Human Rights Act in deciding the Begum case. There is an exception to article 6 that is stated in subsection 2 of the article; where the primary legislation restricts the actions of the public authority or where the public authority cannot read the primary legislation in such way as to give effect to the convention rights. Both of these scenarios do not apply to the Begum case. Having said that, section 6 is widely regarded as cornerstone of the Human Rights Act as it creates a human right culture in the decision making process of the public 52 authorities. The lower Courts are willing to reject

cases where the public authority has not taken into consideration ECHR conventions but the House of Lords has rejected this line of reasoning of the lower and Appellate Courts in the Begum case. Leading to a precedent, which means the decision maker is not bound to look into human rights consideration under the ECHR conventions during the decision making process instead the Courts will decide on such cases through the proportionality 53 principle based on the outcome of the decision. The apparent problem with such an approach is that it puts no restriction on the actions of the public decision maker, which goes against the whole idea of ECHR conventions. Mead names the approach as 54 ‘outcome is all’ in his discussion of the Begum case. Lord Bingham takes this outcome is all approach in the name of pragmatism. He states that the school authorities are not capable of taking all human rights into consideration when making a decision. Mead further argues that such an approach in human right cases is even difficult to accept by

the stark opponents of human rights acts like Poole. He states that sometimes the decision maker will be required to consider human rights, like in deportation cases. He however fails to provide that why in deportation cases and why not in other 55 human right cases. Another reason why this approach is inapplicable in the Begum case is because the school head teacher had the task at hand to create a school uniform that aligned with the beliefs of the overwhelmingly Muslim majority of schoolgirls. This has been shown in the extract from the judgment above. The head teacher not only failed to take into account the human rights but she also failed to take into account the fact that the historical and cultural context of Muslim girls is being ignored by devising a South Asian dress as the school uniform. Malik and MacIntyre argue in an essay “Faith and the state of jurisprudence” that there is an assumption that the mainstream law can bypass without question the understanding of the variety of action as performed 56 under communal belonging. This ignorance of

communal belonging is very important in this case where the uniform selection (the law) had to take into consideration the actions performed under the Muslim community. Another perplexing aspect of the decision is that the reasoning in the decision contradicts the “outcome is all” approach taken by the Lords in deciding the case. The Lords took into account the great length that was taken by the school authorities in devising and explaining the school uniform to the minority. If the outcome is all and it does not have to be proportionate, then there is no reason to do a fact-finding on the steps taken by the school authorities to explain the school uniform to the parents and the students. Furthermore, the device of proportionality to gauge the decision making process of the public authorities is a judicial invention and is not based on the Strasbourg jurisprudence. There is no reason why this device cannot be used as a measure of proportionality in making decisions related to human rights by the public authorities and rather 57 than being exclusively for judicial review.

Religion in the Strasbourg market The Strasbourg Court adopts a formulaic approach to assessing infringements of rights under Article 9 of the European Convention on Human Rights. In the first step of the approach towards this kind of infringement is the stance taken by the Court on the right to practice religion. The Strasbourg Court will stress on the importance of the right to practice religion by stating the leading case of Kokkinakis v 58 Greece . In the second step, the Court assesses if the right to practice religion has been interfered. The Court will do this through three filtering devices; definition of belief, manifestation requirement, and the specific situation rule as 59 highlighted by Hill, Doe and Sandberg. The troubling aspect of the Begum case is that Lord Bingham applied the specific situation rule without making any comment on why he ought to have used that situation despite the lack of contractual

60 relationship between the school and students. In paragraph 22 of the Begum case, Lord Bingham mentions three Strasbourg cases as authority to the justification of imposing a restriction on the 61 manifestation of belief Kalac v Turkey (1997) , 62 Sahin v Turkey (2005) , and Ahmad v United 63 Kingdom (1981) . Furthermore, in paragraph 23 Lord Bingham mentions the Karaduman case from Turkey: Karaduman v Turkey (1993) 74 DR 93 is a strong case. The applicant was denied a certificate of graduation because a photograph of her without a headscarf was required and she was unwilling for religious reasons to be photographed without a headscarf. The Commission found (p 109) no interference with her article 9 right because (p 108) "by choosing to pursue her higher education in a secular university a student submits to those university rules, which may make the freedom of students to manifest their

religion subject to restrictions as to place and manner intended to ensure harmonious coexistence between students of different beliefs". The decision of Kalac v Turkey (1997) was endorsed by the Grand Chamber in Sahin v Turkey (2005). Lord Bingham makes the point through these cases that Article 9 does not protect every religious act or belief and the Court may need to take into account an individual’s situation. The restrictive approach taken by the Strasbourg Court has been beautifully portrayed by Hoopes who states that: Based on the Court's interpretation of the ECHR, Article 9 could perhaps be better understood by stating “the right to manifest one's religious beliefs can be abrogated as long as your government has outlawed that right and they are doing so for appropriate purposes, as determined by the government itself”. He argues that Governments do not always protect human rights; instead, human rights movements can

sometimes threaten the status quo. Hoopes also presents another powerful argument that the ‘prescribed by law’ requirement was very broadly interpreted. This requirement was easily meet when a vice chancellor changed the dressing rules of the university. Even though the change resulted in creating a new law that abrogates the rights of an 64 individual. Sahin v Turkey can be distinguished fundamentally from the Begum case because UK is 65 a religious country while Turkey`s constitution supports secularism. But the approach taken by the House of Lords in deciding the Begum case is the same as the Strasbourg Court, even though, there is no argument present that the UK has a constitutional preference to secularism and the act of the school authorities is inline with the constitutional preference. The third Strasbourg case mentioned by Lord Bingham in the Begum case is Ahmad v United

66 Kingdom . This case can be distinguished from the Begum case because the case was regarding an employment situation where the employee had a contractual relationship with the employer. Furthermore, the religious practice of taking time off for prayer during work hours was directly impacting the time devoted by Mr. Ahmad to his work duties. I am not surprised that the Strasbourg Court tilted towards the right of the employer instead of the religious right of the employee. The Strasbourg Court has stated clearly that the main objective of the European Union is to create a market society. In Polanyi`s words the market society will invert the relationship between the `society and the market. He further hypothesizes that social relations will be embedded in the economic system instead of the economy embedded 67 in the social relations. It is safe to assume from the above analysis that the Strasbourg Court is not willing to take a different direction other than, towards a market society. But at the same time the Strasbourg Court has left it to the national Courts

and member states to decide what kind of religious freedom they are willing to provide their citizens. The same approach has been taken by Strasbourg in 68 other employment cases like X v Demark (1976) , 69 Konttinen v Finland (1996) and Stedman v United 70 Kingdom (1997) . A stark difference between these cases and Begum has been that these cases deal with an employment situation where the manifestation of the claimant’s belief was directly impacting the employer in a quantified way. The situation of religious practice in the case of Begum can be distinguished from the recent case of Bull v 71 Hall in which there was a market element. Both parties to this case where private parties that were acting in a commercial context. On the contrary, one of the parties, school authorities, in the case of Begum was a public party, so the convention right of protection against the discrimination of the state under article 14 of the ECHR also applies here. As stated above, In Lord Bingham`s opinion the 72 case of Karaduman is a strong case and was

mentioned by him in paragraph 23 of the Begum case. The claimant was a female Muslim student who was refused a degree certificate because she refused to take off her headscarf for a picture. The Grand Commission gave the argument that the student has submitted herself to the secularism of the university when she had joined the higher learning institute. This line of reasoning by the adjudicator will amount in practice to restricting women to choose either higher education or their 73 religious convictions. The Commission also referred to the rights and freedoms of other students of the university in the Karaduman case. Perhaps the line of reasoning taken by the House of Lords in the Begum case has been borrowed from this case. But both the Commission and the House of Lords failed to see the violation committed by the state institution in restricting the manifestation of belief under article 9 of a particular student. The Commission and the House of Lords were willing to give more weight to the future violation of the

freedom to belief under article 9 of other students, who would feel pressured to wear the scarfs, but not to the current violation of the state institution committing the infringement of right of a student 74 who brought the claim. The Commission took a very broad and questionable ground in dismissing 75 Karaduman. The same argument can be said about the Begum case as discussed above both the cases where decided on the same line of reasoning. The argument presented by Lord Bingham in paragraph 24 that even if the line of reasoning of the Strasbourg Court is restrictive in interpreting article 9 there is a line of authority established by the domestic Courts. The problem with this argument is that the sole purpose of the European Convention of Human Rights is to bestow new rights on the citizens against the tyranny of the state. These rights may not always follow the precedent established by the domestic Courts. Another reason I find this as a argument weak is because it does not take into account the responsibility vested by the Parliament on the domestic Courts under the Human Rights Act. The final reason for rejecting this argument is

that the House of Lords is referring to cases that have taken a very broad principled approach in deciding the issue of manifesting religious freedom instead of the direct approach based on article 9. Mead argues that not all domestic Courts find the “outcome is all” approach taken by the House of Lord to be clear and constant. He puts forth a list of cases that have diverged from the approach like 76 Doherty v Birmingham in which he quotes Lord Walker asserting that “public authorities are bound to take account of human rights … this should be seen as a normal part of their function not an exotic 77 introduction.” Silber J in the High Court case of R v Y school in applying the precedent of the Begum case noted that the precedent becomes an impossible barrier for a girl who is trying to bring a judicial review against a school who will not allow her to wear a veil (face covering) in the school where she will get in contact with male teachers. He further notes that where a person has voluntarily accepted a role that will restrict her right then according to the precedent in

Begum case there will be no interference found of 78 their rights. The article 9 case law can be contrasted with another case R v The Governing 79 Body of Aberdare Girls High School where the claimant was successful in her claim to wear a bracelet (religious symbol in Sikhism). Silber J makes the following comments about the Begum case and the Aberdare Hirls High School case in paragraph 77. Applying those principles to this case, what must be justified by the defendant is the discriminatory means to achieve the aim of having a uniform policy with its advantages. In order to discharge that burden, Mr Auburn seeks to derive assistance from decisions on justification which were successfully used by schools in the Begum, X v Y School and Playfoot cases to which I

referred in paragraph 2 above in which the Courts found in respect of claims brought under article 9 of the ECHR that the schools were entitled to prevent pupils wearing some piece of uniform. There is a very sharp distinction between those cases and the present case as many of the aspects of justification relied on in those cases are related to the extremely clearly visible and very ostentatious nature of the religious dress sought to be worn by the claimants in those cases. For example the niqab (which is the large veil which covers the pupil's face except for her eyes) in the X v Y School case was clearly at other end of the spectrum from the Kara which is not only 50 millimetres wide but is only visible if the claimant is not wearing long sleeves. By the same token the jihab (which is a long coat –like garment) in the Begum case is infinitely more visible than the Kara.

80 This has led commentators to believe that claimants are best advised to argue anything but article 9 for their claims.

Conclusion

Through the cases mentioned above, it appears that Muslim practices are not fully compatible with UK and EU law.However, it can be seen from the above discussion of the cases that this ought not to be the case. There is potential in the newfound space under community law and the rule of law for individuals to practice their religious identities. The reformation of the state is taking place under the new legal order of the community law has not yet transformed individual space. The lower Courts restricted by precedent and higher Courts restricted by tradition are having difficulty recognizing the citizen in this newfound space. The state agenda is crowded with popular issues while the human rights movement depends on the judicial branch for its survival. This makes the role of the judiciary much more important in the reformation of the state and the individual rights. The problem becomes inherent when we look at the Courts, which are one of the most traditional institutions in the country, as enablers of new form of identities for the individuals. The common law system in which these Courts operate is deeply rooted in tradition and is reforming itself to the dictates of the community

law that do not come in the form of piecemeal change. The problem is further amplified when the Courts are unable to take a non-plural stance for minority rights. The domestic Courts, public authorities and the Strasbourg Court often defer to one another in taking a more active role in this reformation of the relationship between the individual and the state. There is no dispute regarding the freedom of belief, as it is considered absolute both by the domestic and the community Courts. However, the real discussion is about the freedom to manifest belief, which considered is qualified. The first point in this discussion is that there should be no protection for religious practices solely based on their religious nature. The Begum case can be distinguished from being solely a religious case because the school in question was a Muslim-majority institution with special provisions for Muslim schoolgirls. Although religious scholars in the UK agreed with the beliefs held by Begum, her claim would be valid if the criterion was to judge the claimant’s manifestation of belief in accordance with established religions. As discussed above, these

facts were not relevant to the question at hand. The Court of Appeal had established a criterion for public authorities to follow when devising policy that could infringe on human rights. But the approach was rejected by the House of Lords instead the House of Lords shifted the focus of the case away from the decision making process onto the outcome of the decision. Thus a decision made by a public authority will be solely judged based on the outcome of the decision. This approach can be contrasted with the will of the parliament as stated in the Human Rights Act, which mandates Ministers to make a statement of incompatibility if the legislation proposed by the Minister is infringing any conventional rights. Another doubt of shadow can be casted on the decision of the case because the school was a Muslim majority school and the headmistress had the duty to devise a uniform for the Muslim schoolgirls. The decision of the Lords leaves no room to detect any bias in the decision of the public authority. The headmistress was able to get away with making a South Asian dress a Muslim dress in the eyes of the law and then imposed that on all

Muslim schoolgirls no matter if they were from South Asia or not. The Court considers public authorities incapable of using proportionality as a device to gauge their decisions that may come in conflict with convention rights. The Strasbourg Court takes a standard approach to the infringement of rights in article 9. The Court identifies the infringement and then assesses if the infringement in justified in the specific situation. As Hoopes puts it according to the Strasbourg Court an individual’s right to manifest their belief can be abrogated as long as the state allow it and also gives its own reason why its allowing it. The requirement of prescribed by law is so broadly defined that it can allow any public authority to infringe individual rights. The Begum case in UK can be distinguished from case law related to Turkey because UK is a religious country while Turkey`s constitution imposes secularism on individuals. The Begum case can also be contrasted with other EU cases involving employees because Begum did not had a contractual relationship with the school. There are two reasons for which I believe the House of Lords was wrong in deciding the Begum’s case.

The first reason can be seen summarized in this quote form John Stuart Mill in On Liberty. “[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race. … If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by 81 its collision with error.” The issue of extremism cannot be effectively addressed by society if individuals or communities are not given the opportunity to exchange error for truth. The fear of other Muslim girls in the school was not a legitimate reason to restrict Begum’s expression. Her autonomous choice to wear the jilbab was not an expression from another world; it was a living reality and an integral part of a religious identity held by Muslims. The mere fact that there are other schools in the area that allow the jilbab makes the exclusion of jilbab from one school

a discriminatory act. If the House of Lords had allowed the collision of truth and error a clearer perception which would have emerged giving way to a truly diverse and multicultural society. This leads me to the second reason I believe the House of Lords erred in their judgement. Waldron states in his book The Harm in Hate Speech that: “We are diverse in our ethnicity, our race, our appearance, and our religions. And we are embarked on a grand experiment of living and working together despite these differences. … And each person, each member of each group, should be able to go about his or her business, with the assurance that there will be no need to face hostility, violence, discrimination, or 82 exclusion by others.” The Lords failed to see the direct discrimination and exclusion that was carried out against Begum but were willing to consider the indirect discrimination

that may have occurred in the future with other Muslim school girls. This reflects a classic example of the “White Man” civilizing the world by protecting the women from another culture through his homogenous vision of human rights. It is as though Rudyard Kipling writes directly to the House of Lords in his poem, called “The White Man`s Burden”, ‘to veil the threat of terror and check the show of pride’ and they did. Then he warns the Lords that these are not people in the true sense by saying: ‘your new-caught, sullen peoples, half-devil and half-child’ and finally he challenges them to become a man and join the others in this act of wisdom of exclusion by saying ‘come now, to search your manhood through all the thankless years Cold, edged with dear-bought wisdom, the 83 judgment of your peers!’.

Bibliography

Books 1. Ahmad W and Sardar Z, Muslims in Britain: Making Social and Political Space (Routledge 2012) Source accessed 2 April 2015. 2. Bingham T, The Rule of Law (Penguin Books Limited 2011). 3. Bullock K, Rethinking Muslim Women and the Veil: Challenging Historical and Modern (IIIT 2002). 4. Chalmers D and others, European Union Law: Text and Materials (Damian Chalmers ed, Cambridge University Press 2006). 5. Crisp R, Griffin on Human Rights (Oxford University Press 2014) Source accessed 15 April 2015. 6. Diamantides M and Gearey A, Islam, Law and Identity (Adam Gearey and Marinos Diamantides eds, 1st edn, Routledge Cavendish 2010). 7. Durham CW, Islam, Europe and Emerging Legal Issues (Ashgate Publishing 2012) Source accessed 30 March 2015. 8. Emon AM, Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law (Oxford University Press 2012) Source accessed 27 April 2015. 9. Griffith-Jones R, Islam and English Law: Rights, Responsibilities, and the Place of Shari’a (Cambridge University Press 2013). 10. Hamburger JF and Marti S, Crown and Veil: Female Monasticism from the Fifth to the Fifteenth Centuries (Columbia University Press 2008) Source accessed 31 March 2015. 11. Hill M, Sandberg R and Doe N, Religion and Law in the United Kingdom (Kluwer Law International 2011) Source accessed 2 April 2015. 12. Penner J and Melissaris E, McCoubrey & White’s Textbook on Jurisprudence (Oxford University Press 2012) Source accessed 27 April 2015. 13. Raz J, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979) Source accessed 25 April 2015.

Articles 1. Davies G, ‘(Not Yet) Taking Rights Seriously: The House of Lords in Begum v Headteacher and Governors of Denbigh High School’ (2006) Source accessed 2 April 2015. 2. Mead D, ‘Outcomes Aren’t All: Defending Process-Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law. 3. Hoopes T, ‘The Leyla Sahin v Turkey Case Before the European Court of Human Rights’ (2006) 5 Chinese Journal of International Law 719. Online Resources 1. Council of Europe, ‘European Court of Human Rights’ Source accessed 17 March 2015. 2. Hale, Lady, ‘Freedom of Religion and Belief’ (13 June 2014, Annual Human Rights Lecture, Law Society of Ireland)

Source accessed 18 March 2014. 3. Isdale W, ‘Do People Have a Right to Be Bigots?’ Source accessed 23 March 2015. 4. Kipling R, ‘Internet History Sourcebooks: Rudyard Kipling, The White Man’s Burden, 1899’ (Fordham University 1899) Source accessed 23 March 2015. 5. Archbishop of Canterbury, ‘Civil and Religious Law in England: A Religious Perspective’ Source accessed 15 April 2015. Cases 1. McFarlane v Relate Avon Ltd [2010] EWCA Civ 880. 2. R v Headteacher and Governors of Denbigh High School [2006] UKHL (Lord Bingham).

1. R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 (Lord Nicholls).

Footnotes

1. Robin Griffith-Jones, Islam and English Law: Rights, Responsibilities, and the Place of Shari’a (Cambridge University Press 2013) 23.

2. Adam Gearey, Wayne Morrison and Robert Jago, The Politics of the Common Law: Perspectives, Rights, Processes, Institutions (Routledge 2013) 36 – 37 Source accessed 30 March 2015.

3. R v Headteacher and Governors of Denbigh High School [2006] UKHL.

4. Rosemary Hunter, Clare McGlynn and Erika Rackley, Feminist Judgments: From Theory to Practice (Bloomsbury Publishing 2010) Source accessed 24 April 2015.

5. Marinos Diamantidis and Adam Gearey, Islam, Law and Identity (Adam Gearey and Marinos Diamantides eds, 1st edn, Routledge Cavendish 2010) 69.

6. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

7. ‘Archbishop’s Lecture - Civil and Religious Law in England: A Religious Perspective’ Source accessed 15 April 2015.

8. Tom Bingham, The Rule of Law (Penguin Books Limited 2011).

9. Marinos Diamantidis and Adam Gearey, Islam, Law and Identity (Adam Gearey and Marinos Diamantides eds, 1st edn, Routledge Cavendish 2010) 70 - 72.

10. Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1

11. Damian Chalmers and others, European Union Law: Text and Materials (Kindle Location 7926) (Damian Chalmers ed, Cambridge University Press 2006).

12. Tom Bingham, The Rule of Law (Penguin Books Limited 2011).

13. Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press 1979) Source accessed 25 April 2015.

14. Gareth Davies, ‘(Not Yet) Taking Rights Seriously: The House of Lords in Begum v. Headteacher and Governors of Denbigh High School.’ (2006) Source accessed 2 April 2015.

15. Marinos Diamantidis and Adam Gearey, Islam, Law and Identity (Adam Gearey and Marinos Diamantides eds, 1st edn, Routledge Cavendish 2010) 74.

16. Crisp R, Griffin on Human Rights (Oxford University Press 2014) Source accessed 15 April

17. Marinos Diamantidis and Adam Gearey, Islam, Law and Identity (Adam Gearey and Marinos Diamantides eds, 1st edn, Routledge Cavendish 2010) 75.

18. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

19. Waqar Ahmad and Ziauddin Sardar, Muslims in Britain: Making Social and Political Space (Routledge 2012) Source accessed 2 April 2015.

20. Marinos Diamantidis and Adam Gearey, Islam, Law and Identity (Adam Gearey and Marinos Diamantides eds, 1st edn, Routledge Cavendish 2010) 76.

21. R v Headteacher and Governors of Denbigh High School [2006] UKHL (Lord Bingham) [9].

22. Katherine Bullock, Rethinking Muslim Women and the Veil: Challenging Historical & Modern ... (IIIT 2002).

23. Jeffrey F Hamburger and Susan Marti, Crown and Veil: Female Monasticism from the Fifth to the Fifteenth Centuries (Columbia University Press 2008) Source accessed 31 March 2015.

24. R v Headteacher and Governors of Denbigh High School [2006] UKHL (Lord Bingham) [2].

25. Marinos Diamantidis and Adam Gearey, Islam, Law and Identity (Adam Gearey and Marinos Diamantides eds, 1st edn, Routledge Cavendish 2010) 77.

26. R v Headteacher and Governors of Denbigh High School [2006] UKHL (Lord Bingham) [2].

27. Mark Elliott, ‘The Three Dimensions of the Relationship between UK Law and the ECHR’ Source accessed 17 March 2015.

28. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

29. Anver M Emon, Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law (Oxford University Press 2012) 308 Source accessed 27 April 2015.

30. James Penner and Emmanuel Melissaris, McCoubrey & White’s Textbook on Jurisprudence (Oxford University Press 2012) 51 Source accessed 27 April 2015.

31. Lady Hale, ‘Freedom of Religion and Belief’ (13 June 2014) Lady Hale gives the Annual Human Rights Lecture for the Law Society of Ireland 2 Source accessed 18 March 2014.

32. Anver M Emon, Religious Pluralism and Islamic Law: Dhimmis and Others in the Empire of Law (Oxford University Press 2012) 308 Source accessed 27 April 2015.

33. Council of Europe, ‘European Court of Human Rights’ Source accessed 17 March 2015.

34. Robin Griffith-Jones, Islam and English Law: Rights, Responsibilities, and the Place of Shari’a (Cambridge University Press 2013) 15

35. Mark Hill, Russell Sandberg and Norman Doe, Religion and Law in the United Kingdom (Kluwer Law International 2011) 62 Source accessed 2 April 2015.

36. R v Headteacher and Governors of Denbigh High School [2006] UKHL [21].

37. ibid [21].

38. [2005] UKHL 15 [15] – [16].

39. ibid [19]

40. Lady Hale, ‘Freedom of Religion and Belief’ (13 June 2014) Lady Hale gives the Annual Human Rights Lecture for the Law Society of Ireland 3 Source accessed 18 March 2014.

41. Freedom of Religion and Belief, 8-9.

42. [2010] EWCA Civ 880.

43. Lady Hale, ‘Freedom of Religion and Belief’ (13 June 2014) Lady Hale gives the Annual Human Rights Lecture for the Law Society of Ireland 3 Source accessed 2 April 2014.

44. R v Headteacher and Governors of Denbigh High School [2006] UKHL [14] [15].

45. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

46. [2005] EWCA Civ 199

47. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

48. R v Headteacher and Governors of Denbigh High School [2006] UKHL.

49. Ibid [31].

50. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

51. R v Headteacher and Governors of Denbigh High School [2006] UKHL (Lord Bingham) [29]

52. Peter Leyland and Gordon Anthony, Textbook on Administrative Law (Oxford University Press 2012) 73 Source accessed 30 March 2015.

53. ibid

54. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

55. Ibid.

56. Robin Griffith-Jones, Islam and English Law: Rights, Responsibilities, and the Place of Shari’a (Cambridge University Press 2013) 23.

57. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

58. (1994) 17 EHRR 397

59. Mark Hill, Russell Sandberg and Norman Doe, Religion and Law in the United Kingdom (Kluwer Law International 2011) 65 - 66 Source accessed 2 April 2015.

60. Ibid 80.

61. 27 EHRR 552

62. Application No 44774/98

63. 4 EHRR 126

64. T. Hoopes, ‘The Leyla Sahin v. Turkey Case Before the European Court of Human Rights’ (2006) 5 Chinese Journal of International Law 719.

65. Lady Hale, ‘Freedom of Religion and Belief’ (13 June 2014) Lady Hale gives the Annual Human Rights Lecture for the Law Society of Ireland 3 Source accessed 18 March 2014.

66. 4 EHRR 126

67. Damian Chalmers and others, European Union Law: Text and Materials (Kindle Location 36614) (Damian Chalmers ed, Cambridge University Press 2006).

68. 5 DR 157

69. 87–A DR 68

70. 23 EHHR CD 168

71. [2013] UKSC 73

72. 74 DR 93

73. Cole W Durham, Islam, Europe and Emerging Legal Issues (Ashgate Publishing, Ltd 2012) 263 Source accessed 30 March 2015.

74. ibid

75. ibid

76. CC [2008] UKHL 57.

77. David Mead, ‘Outcomes Aren`t All: Defending Process- Based Review of Public Authority Decisions under the Human Rights Act’ [2012] Public Law.

78. Mark Hill, Russell Sandberg and Norman Doe, Religion and Law in the United Kingdom (Kluwer Law International 2011) 81 Source accessed 2 April 2015.

79. [2008] EWHC (Admin) 1865

80. Mark Hill, Russell Sandberg and Norman Doe, Religion and Law in the United Kingdom (Kluwer Law International 2011) 82 Source accessed 2 April 2015.

81. William Isdale, ‘Do People Have a Right to Be Bigots?’ Source accessed 23 March 2015.

82. William Isdale, ‘Do People Have a Right to Be Bigots?’ Source accessed 23 March 2015.

83. Rudyard Kipling, ‘Internet History Sourcebooks: Rudyard Kipling, The White Man’s Burden, 1899’ (Fordham University, 1899) Source accessed 23 March 2015.