A Muslim pupil at a North London school has lost her claim in the High Court in which she challenged the school’s decision to ban ritual prayers during school hours. The school is an avowedly secular secondary school, with 700 pupils who are from a diverse range of ethnic, religious and cultural backgrounds. Half of the pupils are Muslim. The school is known for its strong academic success which it attributes to a singularly distinctive approach to the delivery of its education. This includes a ‘team ethos’ which prioritises the interests of the school community as a collective over the individual. This approach is linked to a robust promotion of integration of all pupils so that social distinctions between them is reduced. In the implementation of the team ethos and such integration, the school exerts a high level of control over the conduct and behaviour of its pupils, deploying a strict disciplinary approach.
Muslims are obligated to pray five times a day and the pupil was able to observe most of these outside of school hours. However, one exception was the performance of the Duhr prayer which, in autumn and winter months, could only take place within a short window during the school’s lunch break. The pupil claimed that she was entitled to ‘free time’ during the lunch break and that she could avail herself of this time in order to observe the Duhr prayer.
Thus, the main element of the pupil’s claim was a challenge to the school’s decision to prohibit its pupils from performing prayer on its premises (the ‘prayer ritual policy’, or ‘PRP’).
There were four substantive grounds of the claim (the fourth, procedural ground will not be discussed here).
The first ground was that, in refusing to allow her to perform these prayers, the school was in breach of her right to manifest her religious beliefs under Article 9 of the European Convention on Human Rights (as incorporated in the Human Rights Act 1998).
Ground two was that the PRP indirectly discriminates against Muslim pupils, contrary to sections 85(2)(d) and/or (f) of the Equality Act 2010 (‘EA 2010’) along with section 19 EA 2010.
Ground three – that, in introducing the PRP, the School failed to have ‘due regard’ to the need to eliminate discrimination, to advance equality of opportunity and to foster good relations between Muslims and non-Muslims, contrary to the public sector equality duty (‘PSED’) under section 149 EA 2010.
The school contended that there was no interference with the pupil’s freedom under Article 9 in that the PRP did not ‘interfere’ with that freedom. The pupil was not subjected to a ‘detriment’ under section 85(2)(f) EA 2010 in not being able to observe the Duhr prayer. This is because the principles of Islam allow individuals to perform the Qada prayer at a later time (outside of school hours) which compensate or ‘make up’ for missing the Duhr prayer at the allotted time. In addition, they argued that the pupil had chosen a school with a largely secular ethos and was able to transfer to other schools in the vicinity which permitted prayers during school hours.
In terms of the claim of indirect discrimination, the School argued that any interference with the pupil’s religious freedom was justified, as the performance of prayers conflicts with its collectivist and secular ethos, and also that any accommodation of prayers would be highly problematic in logistical terms.
Turning to the section 149 duty, the School argued that it did have ‘due regard’ to the required considerations under the 2010 Act when the PRP was introduced, and thus denied any breach of the PSED.
The High Court rejected ground one of the claim on the basis of two reasons. First, that the PRP did not ‘interfere’ with the pupil’s Article 9 right. She had been aware of the school’s ethos before selecting it; if she was not satisfied with her current school, she has the option to move to an alternative school which allowed pupils to observe prayer rituals. In addition, if unable to pray at the allotted time, she was able to perform Qada prayers at a later time. Second, the PRP was justified under Article 9(2) on the basis of the school ethos and the logistical difficulties of facilitating prayer at lunchtime.
Ground two was also rejected by the Court. It recognised that not permitting performance of the Duhr prayers at the appropriate time was a ‘detriment’ under the EA 2010, and that the PRP rendered Muslim pupils at a ‘particular disadvantage’. As such, the PRP had an indirectly discriminatory effect on such pupils. However, in terms of the question of justification, the Court held that the PRP was ‘a proportionate means of achieving the legitimate aims’ of the school and thus justified, citing the reasons provided under the Article 9 claim. Any disadvantage that Muslim pupils suffered, the Court stated, was outweighed by the school’s objective to foster the collective interests of the school community.
Finally, in rejecting ground three, the Court held that the school did have due regard to equality issues in connection with the PRP and therefore had complied with the PSED.
This lengthy judgement has given rise to a number of pertinent issues which require further analysis. One issue is the manner in which the Court affirms the lawfulness of a secular approach within a legal context which prioritises Christianity in schools’ teaching of religion and in collective worship. This should be viewed against the backdrop of the diverse and multi-faith nature of British society - particularly so in the case of this school’s demographic. Another is the Court’s restrictive interpretation of Article 9 and the fact that it ruled that the prayer ban did not ‘interfere’ with the pupil’s freedom to manifest her religious beliefs. This sets a higher standard that future claimants will have to satisfy to establish a claim under Article 9 in their ability to demonstrate ‘interference’, and that this interference is not justified. This ruling may encourage other schools to introduce prayer bans which the courts may also consider lawful.
As the Muslim Council of Britain noted, the school’s policy ‘sets a dangerous precedent for religious freedom in this country as it does for the future of inclusivity in our educational institutions’.
