Lessons from Sir Henry Brooke: Making Rights Real (I)
What if? What if the UK House of Lords (as the UK Supreme Court then was) had left the judgment of Lord Justice Brooke in Begum in the Court of Appeal intact? Brooke LJ in that case held that the school uniform policy of Denbigh High School was unlawful under the Human Rights Act because, relying on that policy, the school did not adequately take into account Shabina Begum’s right to manifest her belief. For religious reasons, Shabina wanted to wear a jilbab to school. The uniform policy did not allow this. By applying the policy, Brooke LJ did not consider that the school had sufficiently sought to uphold Shabina’s right to manifest religion. Simply asserting the school policy that banned the jilbab was, in his judgment, insufficient. Helpfully, Brooke LJ gave a step by step guide on how to carry out an effective human rights review to ensure compliance. That guide had an excellent pedigree. It was based on Keir Starmer’s detailed analysis of how human rights work. That analysis in turn relied upon the pioneering work done by Keir Starmer, Francesca Klug and Stuart Weir in the mid-1990s for the Democratic Audit, then based at Essex University.
The House of Lords disagreed. In a terse judgment, Lord Bingham rejected what he called Brooke LJ’s “new formalism” and “judicialisation” of human rights and public policy. Baroness Hale also dismissed the rigour set down by Brooke LJ and held the school uniform policy to be lawful. The House of Lords considered their job was to assess the compliance of the school’s uniform policy with the Human Rights Act. Brooke LJ was proposing something different. He was concerned with policy’s practical application on Shabina.
By upholding the school’s uniform policy, the Law Lords confirmed that the HRA would not unsettle the status quo. A proportionality review was no more than an in-depth, detailed and forensic version of a Wednesbury assessment. Because the school had consulted and considered various options in deciding to ban the jilbab (albeit they, on their own admission, had not taken onboard the values underlying Brooke LJ’s step by step guide), this was sufficient to make the policy proportionate. The fact that the policy was found to be proportionate was considered to have taken into account Shabina’s rights under Article 9 of the ECHR. There was no violation.
The Law Lords considered that the formula proposed by Brooke LJ to ensure compliance was too demanding for the school governors and those giving effect to the policy. There was no need to single out human rights. And with their judgment, Brooke’s vision for creating a human rights culture in the UK ended – not with a bang but a whimper.
The decision not to adopt the step by step guide was a lost opportunity. All those responsible for implementing human rights would have been capable of following it. Isn’t it somewhat condescending to assert that those responsible for public policy are not capable of applying a structured approach to human rights protection? If judges should, and law students are expected to, why can’t a school or a prison governor? But, the loss of Brooke’s template for a culture of rights isn’t the only aspect of Begum that was concerning.
Begum also ushered in an approach to Article 9 and the manifestation of faith which has granted religion a status that the right does not deserve. In the absence of Brooke LJ’s structured approach, Article 9 has become much more subjective, whereas the European Court of Human Rights, on which Starmer et al based their analysis, has consciously sought to limit its scope. Whilst the scheme of the right requires that it must be widely applied (in that most people acting on their faith – or lack of it – are included within the provisions parameters), if there is a rational ground for interfering with the manifestation of the right, or where there is a clash of rights, faith defers.
The rigour of Brooke LJ’s template required that result. That was its intention. Shabina could have been denied the right to wear the jilbab, but only following a thorough human rights assessment, which in the Begum case had been missing. In the absence of that rigour surprising results can occur and undue deference to faith can be the consequence. Fast forward to last year’s decision in Gareth Lee v Ashers Bakery and we see the upshot of not following a structured approach when assessing when it may be lawful to interfere with the right to manifest religion. In my next post, I will explain why.