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Ecclesiastical Case Reports
R v Secretary of State for Education and Employment ex parte Williamson
(House of Lords: Lords Bingham of Cornhill, Nicholls of Birkenhead, Walker of Gestingthorpe, Baroness Hale of Richmond, and Lord Brown of Eaton-under-Heywood, February 2005)
Corporal punishment - faith schools - human rights
In response to the decision of the European Court of Human Right's decision in a case of Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 Parliament enacted the Education (No 2) Act 1986 which made it illegal for school teachers in maintained (state) schools to administer corporal punishment. It was also illegal for teachers to administer corporal punishment to pupils within the independent sector who received public funding, for instance under the assisted places scheme. In 1993 in response to the decision of the ECtHR in Costello-Roberts v United Kingdom (1993) 19 EHRR 112 and in compliance with Article 3 of the European Convention on Human Rights, which imposes upon states a positive obligation to ensure that individuals are not subjected to 'inhuman or degrading' punishment, Parliament intervened again with regard to those children at private schools who were not covered by the earlier legislation. Section 293 of the Education Act 1993 provided that the corporal punishment of children could not be justified if 'inhuman or degrading'. In 1998 the ban pursuant to the 1986 Act was extended to include privately funded children attending independent schools by way of section 548(1) of the Education Act 1996. The extension of the ban was challenged by the appellants in the present case who were head teachers, teachers and parents of children at four independent Christian schools. They contended that the ban was incompatible with their Convention right to freedom of religion and freedom to manifest their religion in practice, a right guaranteed under Article 9 of the Convention on Human Rights. Their application for judicial review failed in the court of first instance and they also failed in the Court of Appeal (2004) 7 Ecc LJ 491. The appellants believed that, correctly used, discipline of this type was an effective deterrent against behaviour that was unacceptable in the community. They stated that there were 40 schools conducted in accordance with these beliefs, which were grounded in Scripture.
The claimants argued that section 548(1) of the Education Act 1996 did not apply where parents had delegated to a teacher their common law right to discipline their child. This argument was rejected, as the plain purpose of the section was to prohibit the use of corporal punishment by all teachers in all schools. Parents cannot opt in or out of the prohibition. They also claimed that they were seeking to exercise their right to manifest religious beliefs protected by Article 9 of the Convention and to educate their children according their right protected by Article 2 of the First Protocol to the convention. The conduct of the claimants was capable of engaging Article 9 as it was rooted in a belief. The rights of the parents under Article 2 of the first protocol were also engaged although as the article extended only to parents the teachers had no rights protected by it. As to Article 9 of the Convention the teachers' rights were ancillary to those of the parents. Section 548 constituted a material interference with the claimant parents' manifestation of their beliefs but it was one that was justified under Article 9(2). The ban against corporal punishment had been prescribed by primary legislation in clear terms and was 'necessary in a democratic society … for the protection of the rights and freedoms of others'. The statutory ban was intended to protect a vulnerable group, namely children, from harm that might be caused by corporal punishment. The legislature was entitled to take the overall view that (balancing the conflicting considerations) all corporal punishment of children at school was undesirable and unnecessary and that other non-violent means of discipline were available and preferable.
[LY]
This case is reported at [2005] UKHL 15.
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