Flagging up new laws

Should heads lose sleep over the Human Rights Act? Not just yet, but limits on school uniforms may be merely the first knock-on effect of this European law.

When the Human Rights Act was passed we were told that since the European Convention on Human Rights had been drafted to a large extent by British jurists, it would not affect us.

It is true that no school has yet lost a case of alleging 'forced labour' for getting pupils to pick up litter. Yet two recent cases have been lost by schools in the Appeal Court. These cases dealt with the right to manifest religious beliefs and the right to education.

How free is religion

The decision on freedom of religious belief seems puzzling. France and Turkey can ban Islamic headscarves; yet when an English school enforces a Muslim uniform, which has been approved by a whole range of respected Muslim authorities and by a majority of parents, the school loses. Is it one law for Britain and one law for the rest of Europe?

Ultimately the European Convention on Human Rights has two sources: the experience of Nazism and the Enlightenment. The right to education comes from the former, freedom of religion from the latter.

The 16th and 17th centuries in Europe were characterised by ecstatic religious fanaticism and enforced uniformity within and beyond own borders. This crusading/jihadi mentality produced civil war in Britain, dragonnades in France and the Thirty Years' War in Germany.

After 200 years of this, the Enlightenment developed a view of religious toleration which divided life into private and public realms. The state only regulated religion if it interfered with public order or general rights.

This view is embodied in most European constitutions, and the European Convention recognises the right of a secular state to defend the secular nature of its institutions: hence the judgements in favour of headscarf bans.

Non-secular Britain

The Appeal Court, however, ruled that Britain has no written constitution, Britain is not a secular state, and British schools are not secular.

The judges concluded that schools must allow the free expression of religion in school by allowing a Muslim girl to wear the jilbab. Curiously, this argument does not extend to allowing Christian fundamentalists to set up schools that obey the Biblical injunction not to spare the rod lest you spoil the child.

The difference in treatment seems to rest on the fact that Islam, unlike the West, recognises no distinction between private and public life. For Muslims, dress codes are religion.

British schools, then, have a unique problem, constrained as they are by their own religious nature and confronted with the problem of a divided Islam, within which globalisation and oil wealth have given the Wahabi and other 'strict' sects the opportunity to press their views world wide.

We shall see whether French secularity and logic or British muddle will solve this problem better.

In other aspects of this issue, however, things have worked out differently. For example, English courts have had to accept rulings in European law that an employee cannot insist on working arrangements that conform to religious belief.

For instance a Christian cannot demand Sundays off or a Muslim demand time to attend Friday prayers. The ground for these decisions was that no one is forced to take a particular job. The Appeal Court took the view that this did not apply to schools.

The issue of the right to education has mostly arisen in the context of exclusion, though parents have raised it unsuccessfully in the context of school admissions and SEN. Here at least, the position taken by our judges has been more helpful.

It is now clearly established that the right to education in a signatory state is the right to whatever education is provided by that state. If exclusion from school is lawful, exclusion does not infringe the right to education.

However, this only applies to lawful exclusions. Whatever pressures are brought to bear to evade a formal exclusion by allowing a child to 'slip away' quietly, they should be resisted.

If an exclusion is not lawful, then the Human Rights Act applies; and unless the House of Lords reverses the judgement on this point, the head is personally at risk.