A recent High Court judgment has ruled that a London school’s ban on ritual prayers does not indirectly discriminate against or interfere with Muslim students’ right to freedom of religion. The judgment has already been criticised for restrictively interpreting Article 9, suggesting that claims may be better brought under the Equality Act 2010. This blogpost argues that adopting a ‘spiritual equality’ framework better conceptualises the ‘detriment’ to Muslim students caused by the ban.

Facts

In R v Michaela Community Schools Trust, the secular secondary school enacted a ‘prayer ritual policy’ (PRP) which banned all ritual prayer, although there is no evidence that non-Muslim pupils wanted to pray. The PRP was enacted as an interim measure in the interest of maintaining a ‘peaceful, integrated community’, following concerns of practicing Muslim students intimidating other Muslim students. Muslims are obliged to pray five times a day with allotted windows of time that each prayer must be completed within. The claimant student accepted that this would not always be possible during the school day; however, there is a period during the autumn and winter where the allotted time for Dhuhr (the midday prayer) falls within lunchtime. She requested that she be able to use a period of this ‘free time’ to pray instead of having to make up those prayers at home, an Islamic legal relief known as Qada. This refers to ‘making up’ a missed prayer where it was unable to be performed for ‘good reason’, such as being physically incapable of performing the prayer e.g. where a surgeon cannot forego an operation. It should not be viewed as an alternative to deliberately missed prayers [p44].

Ground 2

The claim was brought on four grounds, which are aptly summarised here; Ground 2, referring to indirect discrimination, is the focus of this piece. The claimant argued that the PRP indirectly discriminated against Muslims under s85(2)(d) and/or (f) Equality Act 2010, referring to not affording pupils access to a benefit, facility or service and/or subjecting pupils to ‘any other detriment’, respectively. The school argued that she was not subject to any ‘detriment’ because Islam allows her to make up for the missed prayers through Qada. It is the conceptualisation of ‘detriment’ in this instance that should be read more expansively to include disadvantage in the realm of spirituality. The availability of Qada to the claimant is contestable depending on circumstances; nonetheless, the harm that missing a prayer does to the claimant’s spirituality should be factored into any analysis of ‘detriment.’

Spiritual Equality

A conceptual framework of ‘spiritual equality’ has regard for how different religions interact with the law to create unique experiences of disadvantage that may not reflect the Christian-centric paradigm of religion that dominates our understanding of religious freedom. A richer picture of ‘detriment’ to spirituality, under s85(2)(f) Equality Act 2010, can be mapped through two steps in this case.

First, the school’s argument that Qada is an available alternative to the claimant, indicating no detriment, is contestable when adopting a spiritual equality lens. The expert witness made an analogy between students in lessons to the example of the surgeon performing an operation, meaning that Qada is available to students in this scenario [p45]. However, the claimant’s argument refers to narrower circumstances as she contends she should be able to pray during a period of her lunch break which she views as ‘free time’. In this instance, she does not view Qada as a viable alternative since she, in theory, has more autonomy to pray without disrupting school activities. Qada therefore cannot (and should not) be used as a tool by the school to conveniently circumvent students’ religious duties, nor is it the place of the High Court to determine that the ban constitutes ‘good reason’ for students to use Qada, since this enters the realm of religious determination.

Second, in light of the opinion that Qada is not available to her in this instance, preventing prayer brings about harm to her spirituality. She appropriately argues that being forced to perform Qada brings about significant detriment [p40]. A spiritual equality perspective widens ‘detriment’ to encompass harm to spirituality. The gravity of the sin of missing a prayer where one is able to perform it, weighs heavy on Muslims. Qada is understood as an exceptional measure. However, the PRP forces her to seek forgiveness through Qada ‘every day, all of the year’ [p40], pushing Muslim students into breaking their religious obligations. This is particularly egregious during ‘free time’ where they feasibly have the autonomy to pray. The PRP unduly removes this ability from them.

In sum, a spiritual equality analysis alters a finding of ‘detriment’ to encompass harm done to spirituality. In this way, more weight should be afforded to the full scope of disadvantage that interfering measures impose when courts weigh balancing interests against each other.