Background

In R (TTT) v Michaela Community Schools Trust & Anor [2024] EWHC 843 (Admin), the school’s governing body decided in 2023 to prohibit its pupils from performing prayer rituals on its premises after the Headteacher had banned them as an interim measure. That policy applied to all prayer rituals, regardless of religion, but there was no evidence that pupils of any religion other than Islam wished to perform prayer rituals during the school day [3]. Muslims are required to pray five times a day. The claimant, a Muslim, accepted that the requirements of the school day meant that she would not always be able to fulfil that obligation during the appropriate period; however, she wished to be allowed to perform the midday prayer [Duhr], which during the autumn and winter months would be possible during the school lunch break – which, she argued, was “free time” [4].

The arguments

It was argued for TTT that the school’s refusal to allow her to perform the prayer during her lunch break violated her rights under Article 9 ECHR (freedom of thought, conscience and religion) (Ground 1). Further, the policy discriminated indirectly against Muslims, contrary to sections 85(2)(d) and/or (f) of the Equality Act 2010 read with section 19 (Ground 2); and in introducing the policy, the school had failed to have “due regard” to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations between Muslims and non-Muslims, contrary to the public sector equality duty under section 149 of the 2010 Act (Ground 3) [5]. She had also been subject to two “fixed terms of exclusion” which were procedurally unfair insofar as she had not been allowed to respond to the allegations against her before the Headteacher decided to exclude her (Ground 4) [6].

The school argued that the policy did not “interfere” with TTT’s freedom to manifest. Nor did it subject her to a “detriment” for the purposes of section 85(2)(f) of the 2010 Act because Islam allowed her to make up for the missing prayers by performing other prayers later in the day. Further, she had chosen a secular school which she knew to have a strict behavioural regime and she was free to transfer to a school that would let her to pray if she wished to do so. Moreover, any interference with her religious freedom or indirectly discriminatory effect of the policy was justified because allowing students to perform ritual prayer would conflict with the school’s ethos and its behavioural rules, and because it was impractical for the school to accommodate them [7]. It also asserted that it had, in fact, given “due regard” to section 149 of the 2010 Act [8].

The judgment

In R (Williamson) v Secretary of State [2005] UKHL 15, Lord Nicholls had drawn a distinction at [16] between the two elements of Article 9: there was “a difference between freedom to hold a belief and freedom to express or ‘manifest’ a belief. The former right, freedom of belief, is absolute. The latter right, freedom to manifest belief, is qualified” [132]. Further, in R (Begum) v Governors of Denbigh High School [2006] UKHL 15, the House of Lords had held that there had been no limitation placed by a school on the freedom of a female Muslim pupil when it refused to allow her to manifest her religious beliefs by wearing the jilbab coat because the uniform policy of the school did not permit it [145]. The essence of the principle was “that if the individual has a genuine choice … to manifest their beliefs elsewhere there will be no interference with their Article 9 rights [155].

Linden J also cited with approval Lord Bingham’s statement at [32] in Begum, commenting on the judgment in Şahin v Turkey (2007) 44 EHRR 5, that

“The court  there recognises the high importance of the rights protected by Article 9; the need in some situations to restrict freedom to manifest religious belief; the value of religious harmony and tolerance between opposing or competing groups and of pluralism and broadmindedness; the need for compromise and balance; the role of the state in deciding what is necessary  to protect the rights and freedoms of others; the variation of  practice and tradition among member states;…” [171].

He concluded that there had not been any interference with TTT’s Article 9 rights; though that conclusion might be surprising to some, “in my view it is consistent with the pre Eweida caselaw of the Strasbourg Court, which reflects the fact that Article 9 protects ‘freedom’ to manifest religious beliefs rather than conferring an absolute right to do so” [175].

On the issue of proportionality, there was a rational connection between the aim of promoting the Team ethos of the school, inclusivity, and social cohesion and the impugned policy [198] and there would have been logistical problems in facilitating prayer for Muslim pupils [200]. The aims of school’s policy were legitimate aims to which the policy was rationally connected [201] and there were no less-intrusive measures that could have been introduced [202]. It was also relevant that the essential nature of the school regime was one which TTT and her fellow pupils, “or at least their parents”, had chosen, and,had chosen to remain at the school notwithstanding the policy [205]. The adverse effects of the policy on the rights of Muslim pupils were outweighed by the aims of the policy and the extent to which it was likely to achieve them, and that policy was therefore proportionate [206]. Ground 1 therefore failed [208].

As to Ground 2, while TTT had been subject to a “detriment”, the policy was a proportionate means of achieving a legitimate aim: “The disadvantage to Muslim pupils at the School caused by the PRP is in my view outweighed by the aims which it seeks to promote in the interests of the School community as a whole, including Muslim pupils” [232]. Ground 2 therefore failed [233].

As to Ground 3, Linden J accepted that the Governing Body had had due regard to the matters required by section 149(1)(a)-(c) of the Equality Act 2010 [267], and even if he had concluded that Ground 3 was well founded, he would have refused relief [273]. Ground 3 also failed [274].

On Ground 4 – the two exclusions – he dismissed the appeal against the first one but upheld the appeal against the second one [311].

There is a summary of the judgment issued by Courts and Tribunal Judiciary here.