Banning prayer in school: a lawful interference?

15 May 2024 by Guest Contributor

By Rebekah Lee

The case of R (TTT) v Michaela Community Schools Trust [2024] EWHC 843 (Admin) in the High Court before Mr Justice Linden concerned a claim brought by a pupil referred to as a TTT (“the Claimant”) against the Michaela Community Schools Trust; (“the School”). The School is a secular secondary free school in the London Borough of Brent, which appeared as an interested party. The School is ethnically and religiously diverse, although over half of the pupils, including the Claimant are Muslims [1].

This post addresses only Ground 1 of the Claimant’s claim – alleged breach of the right to religious freedom under Article 9, ECHR – although the judgment (all 83 pages of it!) includes extensive discussion on Indirect Discrimination [214-232], the Public Sector Equality Duty (“PSED”) [257-273] and school exclusions [294-311], none of which were successful save for Ground 4b which concerned procedural unfairness around exclusions.

Background

The School’s distinct ethos is referred to consistently throughout the judgment. It has three key components:

• Discipline and Behaviour. In headteacher Ms Birbalsingh’s own words it is “the strictest school in Britain” [49].
• Academic Success. The School is renowned for exceptional exam results [48] and social mobility, with over a quarter of students eligible for free school meals or in local authority care [47].
• Team ethos and social cohesion. Again in Ms Birbalsingh’s words, the School “aggressively” promotes integration between different faiths, cultures and ethnic backgrounds [2]. This is encouraged through various practices including “guided socialisation” at lunchtime where teachers actively ensure students are not left on their own.

On 23 May 2023, the School introduced “the prayer ritual policy” (“PRP”) which prohibited its pupils from performing prayer rituals on its premises [3]. Whilst the policy applied to all religions, there was no evidence that pupils of any religion other than Islam wished to perform prayer rituals during the school day. This was introduced after several students, including the Claimant, had begun praying in the schoolyard.

Ms Birbalsingh argued that the PRP was necessary as prayer rituals had i) fostered division amongst the pupils, ii) caused behaviour, “shocking” by the standards of the School and iii) resulted in a campaign of abuse against the School. Further, permitting prayer inside would iv) be logistically impossible because of the lack of available space and staff to supervise pupils and v) cause pupils to miss “guided socialisation” during the lunch hour. Finally, she maintained that once the PRP had been introduced the operation of the school returned to normal [127].

The Claimant’s objection to the PRP was limited to her inability to practise Duhr – one of the five daily prayers required to be undertaken “in a window of time from when the sun passes its highest point in the day to the opening of the window for the next of the five prayers: the Asr prayer” [4]. In Autumn/Winter, this fell within the school lunch break, the latter 25 minutes of which the Claimant considered to be her “free time”.

TTT claimed that he School’s refusal to permit her to pray was a breach of her right to freedom to manifest her religious beliefs, which is protected under Article 9 of the European Convention on Human Rights (“ECHR”).

The Judgment

The claim failed. Linden J found that there had been no interference with the Claimant’s Article 9 right [175], in short, because the Claimant could have moved to a different school.

Voluntary Acceptance

Linden J referred to R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100 (“Begum”); a leading Article 9 case where the House of Lords ruled that Denbigh High’s prohibition on wearing a longer, looser Muslim gown (jilbab) was not an unlawful interference with the Claimant’s rights. At [23] Lord Bingham stated:

“The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience. (bold in emphasis added).

The Claimant contended that this was not a voluntary acceptance as the PRP had been introduced since she started the school and that moving school at the time of her GCSEs would have “really set her back” [174] as she “did not think she would be able to access such a high standard of education elsewhere in the area” [173].

Linden J found:

• At the time of enrolment “the Claimant knew the school was secular” [176]. In reliance on Begum [23] voluntary acceptance includes “impliedly agreeing to limitations being placed on their freedom to manifest their religious beliefs… whether or not the precise limitations are known to the claimant at the moment of joining” [151].
• The Claimant had not shown that she would suffer any undue hardship or inconvenience if she were to move to a different school that allowed her to pray during the school day [177]. Linden J emphasised that the “test” was whether the individual had a “genuine choice” (Lord Scott, Begum [87]) and therefore the “adverse consequences” that any student would suffer at having to move school, were not sufficient to constitute an interference with Article 9 rights [178].

Proportionality (Article 9(2))

Despite Linden J’s conclusion that there was no interference, “in case he was wrong on this” he considered whether the PRP was a proportionate interference under Article 9(2) [182]. The School’s justifications are laid out at [183-185] and summarised as follows:

1. It preserved the ethos, policies and practices of the School.
2. It promoted pupils’ compliance with the School’s behaviour policy, protecting the School from threats and abuse.
3. It avoided the logistical disruption and detriments to other School activities which would be caused by accommodating prayer rituals in the School building.
4. It avoided detriment to pupils’ education and social cohesion which would occur by opting out of socialising during the lunch break.
5. The issues only arose during the Winter months.
6. The PRP could be reviewed at a later date.

At [186-190] the Claimant contested the School’s justifications as follows:

1. Insofar as reliance on the ethos of the School meant removal of any distinction between pupils based on religion, this was not a legitimate aim.
2. The PRP was not rationally connected to compliance with behaviour policy as rules could regulate the risk of intimidation against Muslim pupils by other Muslim pupils.
3. The concerns about threats of abuse were only rationally connected to prayer outside in the schoolyard.
4. The decision-making of the School failed to apply a sufficiently high level of scrutiny to fairly balance the School’s aims and the importance of prayer to the Claimant.
5. The Claimant only sought to withdraw from socialising at lunch for 5 minutes.
6. The logistical difficulties were speculative as the School predicted a “100% take-up opportunity” but this had not been the case when Sixth formers were allowed to pray at lunchtime in 2021. 

Linden J found that the focus must be on whether to permit prayer indoors. Therefore, the fears of threat and abuse which occurred in March/April 2021 “should be put aside” [193]. However, he accepted the School’s evidence of the risk of intimidation and the likely substantial take-up, of the opportunity to pray. Therefore, he concluded that there was a rational connection between the PRP and the promotion of both the School’s behavioural policy and the ethos of social cohesion [196-197]. He found that even if Ms Birbalsingh had overestimated the numbers, there would be significant complexity in supervising and reconfiguring classrooms to accommodate prayer.

Whilst Linden J acknowledged the importance of prayer to the students, he accepted the School’s submission that “the vast majority of Muslim pupils and parents had not regarded the issue of sufficient concern to raise it… perhaps because they felt performing Qada (a prayer used to compensate for missed prayers [43]) was an acceptable compromise, as Ms Birbalsingh suggests” [204]. Ultimately, Linden J found that the interference was proportionate as the aims of the PRP “outweigh the adverse effects in the rights of Muslim pupils” [207].

The quality of the decision-making process 

Throughout his reasoning, Linden J referred to the weight which should be given to the assessment of experienced teachers, “on the ground” [195]. This echoes the reminder by Lord Hoffman in Begum at [64] “that a domestic court should accept the decision of Parliament to allow individual schools to make their own decision”.

Counsel for the Claimant contended that “a Defendant earns the Court’s deference through its decision making” (Re: Brewster [2017] UKSC 8, [2017] at [50] and [64]). In the Claimant’s submission, the School had not conducted the same “impeccable” decision-making process including extensive consultation with the local Bengali community carried out by Denbigh High in Begum [164]. Whilst Mr Linden J ultimately found that this was a question of proportionality, he commented:

“I agree with Ms Hannett [Claimant’s counsel] to this extent: all other things being equal the better the quality of the decision-making process, and the greater the relative level of expertise of the decision maker, the greater the weight which their judgment is likely to be given by the court, and vice versa” [168]

Comment

This case poses two interesting further questions, from both a Claimant and Respondent perspective, as to how this judgment affects future Article 9 claims in the educational context.

When would moving school ever meet the threshold of “undue hardship and inconvenience”?

Linden J found that the Claimant would not suffer undue hardship and inconvenience should she move to a school where she was permitted to pray. This was despite the Claimant’s submission that she would find it difficult to “access such a high standard of education elsewhere in the area”; a likely fact given the School’s exceptional results. Linden J. made some suggestion of factors which may constitute hardship, when he commented that the Claimant had not adduced evidence that, “there is no school within travelling distance which would permit her to do so, or there is no such suitable school, or that it would be impossible for her to secure a place at such a school” [177]. However, the fact that the Claimant’s submission failed to meet this, suggests a high threshold. Whilst it was conceded by Claimant counsel that this Court was bound by the approach taken to the question of interference in Begum [23] as per Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 at [43], there is some suggestion that Strasbourg has moved slightly from this position.

In Eweida v United Kingdom (2013) 57 EHRR 8 at [83] the Court stated, “rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate”. If this approach were adopted, it would appear that the difficulties for the Claimant in finding a comparable school would be weighed in the balance. However, whilst Begum remains good law and state faith schools exist it is difficult to conceive of a scenario where a student would not have the “genuine choice” of moving to a school where prayer would be permitted.

To what extent are the unique features of this school determinative of this judgment?

Whilst the above argument emphasises the high threshold for establishing an interference with Article 9, the question of proportionality is clearly fact-dependent. Interestingly, in this case, Linden J accepts that the PRP would interfere with the ethos of the School; encompassing both its rules on behaviour and social cohesion. However, the ethos of Michaela is unarguably unique. In a school without such a distinct ethos, the justification may be limited to practical issues of accommodating and supervising the students whilst praying. Michaela is housed in a seven-storey office block rather than premises which were designed to be a school [60]. Therefore, in a purpose-built school building, physical constraints and even supervision, in an open-plan environment, may be less of a convincing factor. Further, Linden J’s reference to the greater weight afforded to higher quality decision-making suggests that future courts cannot automatically defer to a school’s judgment on the justification for their practice and therefore the facts specific to the case are critical in tipping the balance one way or the other.

However, proportionality is a factor that is only considered when interference is found. Therefore, in a UK context where over a third of all state-funded schools in England and Wales are in legal terms “schools with a faith character” ^[1], the threshold for finding a “secular” school in breach of Article 9, remains a high one.

Rebekah Lee is a pupil barrister at 1 Crown Office Row

[1] Long, R and Danechi, S. Faith Schools in England: FAQs: Briefing Paper, Number 06972, 20 December 2019