Think before you ban – a formula for drafting policies compatible with human rights laws

There seems to have been a particular spate of reports recently on religious observance in quasi public places. For example, a Birmingham college reversed its long-standing policy of banning face coverings such as the niqaab, while a Crown Court judge decided that a defendant could wear a niqaab during trial, except while giving evidence, but was permitted to give evidence from behind a screen shielding her from public view. Institutions could be forgiven for feeling a modicum of confusion in the wake of these reports regarding the extent to which individuals have a right to manifest religious beliefs or in fact exercise any of the rights conferred by the European Convention on Human Rights (ECHR). Given the ever-increasing diversity of UK society, diversity inevitably reflected on our campuses, such concerns are likely to arise with greater frequency.
While the Human Rights Act imposes a duty on all publicly-funded institutions to act in a manner compatible with the rights guaranteed to individuals under the ECHR, the ECHR itself also provides a formula for discharging that duty and hence for assuaging confusion.
The essence of the duty imposed on institutions by the ECHR is to balance competing interests e.g. those of the individual wishing to manifest their religious beliefs, with the interests of the institution’s larger community of staff and students or the institution itself. In order to perform that balancing exercise and to ensure that restrictions on the particular right are not imposed arbitrarily, the following questions should be asked by institutions in order to determine whether a proposed policy (such as banning a niqaab) amounts to a breach of the ECHR right.
1.    Does the institution’s proposed policy have a basis in law?
The institution’s policy must not be a breach of the general law. In addition, the policy must be clear and accessible to all students bound by it, so as to create a degree of predictability or foreseeability. The students must be able to foresee with a reasonable degree of certainty the consequences of wearing a niqaab in breach of the policy (e.g. disciplinary proceedings).
2.    Does the policy pursue a legitimate aim?
A policy will be legitimate if it genuinely pursues one of the aims set out in the ECHR. The aims relevant to institutions in the student context will be the prevention of disorder and crime and/or the protection of the rights and freedoms of others (including the institution itself) e.g. security, safety, where relevant, patient safety/confidence. Institutions must be clear about their objective, so that they can balance it against the proposed restriction, e.g. is the aim to protect the safety of staff and students or to protect the patient-student nurse relationship?
3.     Is the restriction necessary in a democratic society?
In other words, institutions must be satisfied that there is a pressing social need justifying the proposed restriction, taking into account the characteristics of a democratic society, such as pluralism, tolerance and broadmindedness.
4.    Is the restriction proportionate?  
Proportionality seeks to find a fair balance between the protection of individual rights and the interests of society or the institution at large. The essential question is therefore whether there is a less restrictive, but equally effective way of achieving the same objective e.g. a total niqaab ban versus a ban at specific times, such as while on clinical placement.
These questions act as a very useful guide to all institutions to ensure that there is no arbitrary exercise of power. It will also ensure that any conflicts between individual rights and institutional interests are resolved fairly and in accordance with the principles of a democratic society.

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385

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