23 March 2006

Lord Bingham's Judgement

A year ago I wrote:
I'm less interested in whether religious traditions should override school uniform policies, than in the bizarreness of the legal argument that the Appeal Court used.

Their finding seems to be that the School erred by not considering whether their uniform policy breached the pupils' human rights. If they had considered it, they could have decided, as the lower court did, that the uniform policy was fine, and they would have been OK. They lost because they didn't have a piece of paper on file saying that they had taken human rights into account.

[...] This trend of legal and regulatory requirement is intensely stupid and irritating. It replaces restrictions on actions and policies with thought crimes. I mean that precisely; the fault of Denbigh School was not in its actions but in the way it decided its actions.


Yesterday Lord Bingham of Cornill ruled:
31. Thirdly, and as argued by Poole in his article cited above, pages 691-695, 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.


Lord Hoffman concurred:
68. [...] In domestic judicial review, the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer. But article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9.2? The fact that the decision-maker is allowed an area of judgment in imposing requirements which may have the effect of restricting the right does not entitle a court to say that a justifiable and proportionate restriction should be struck down because the decision-maker did not approach the question in the structured way in which a judge might have done. Head teachers and governors cannot be expected to make such decisions with textbooks on human rights law at their elbows. The most that can be said is that the way in which the school approached the problem may help to persuade a judge that its answer fell within the area of judgment accorded to it by the law.


What more need I say?

Links:

High Court case
Court of Appeal case
Law Lords case
2005 statement by Luton council
Previous posts: 1 2 3 4

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