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Published online by Cambridge University Press: 31 July 2008
On 24 February 2005 the House of Lords delivered a significant judgment on freedom of religion, parental rights to religious freedom, corporal punishment and children's rights. This paper examines R (Williamson) v Secretary of State for Education and Employment. It argues that the House of Lords adopts a much more generous approach to freedom of religion or belief than the European Court of Human Rights. But it is also critical of the argument derived from children's rights.
1 I am grateful to Professor Malcolm Evans and Dr Julian Rivers for their comments. All errors are mine.Google Scholar
2 R v Secretary of State for Education and Employment, ex parte Williamson [2005] UKHL 15, [2005] 1 FCR 498, [2005] 2 AC 246, noted at (2005) 8 Ecc LJ 237. For convenience, references hereafter to the speeches in the House of Lords are simply prefaced Williamson.Google Scholar
3 Applicable to maintained schools (state schools) and non-maintained schools (independent schools) receiving public funding. This followed Campbell and Cosans v United Kingdom, Applications 7511/76–7743/76 (1982).Google Scholar
4 The Education Act 1996, s 548(1), provides: ‘Corporal punishment given by, or on the authority of, a member of staff to a child—(a) for whom education is provided at any school … cannot be justified in any proceedings on the ground that it was given in pursuance of a right exercisable by the member of staff by virtue of his position as such’.Google Scholar
5 Applicable to privately-maintained schools.Google Scholar
6 This followed Costello-Roberts v United Kingdom, Application 13134/87 (1993).Google Scholar
7 This followed A v United Kingdom, Application 25599/94 (1998).Google Scholar
8 Williamson, paragraph 12.Google Scholar
9 R (on the application of Williamson) v Secretary of State for Education and Employment [2002] 1 FLR 493, Elias J.Google Scholar
10 R (on the application of Williamson) v Secretary of State for Education and Employment [2003] QB 1300, [2003] 1 All ER 385, CA.Google Scholar
11 Williamson, paragraph 22.Google Scholar
12 Williamson, paragraph 60.Google Scholar
13 Refah Partisi (The Welfare Party) v Turkey, Applications 41340/98–41342/98–41343/98–41344/98 (2003), paragraph 93.Google Scholar
14 Sahin v Turkey, Application 44774/98 (2004), paragraph 99.Google Scholar
15 Refah Partisi, paragraph 123. This view has been criticised by Evans, M, ‘Believing in Communities, European Style’ in Ghanea, N (ed), The Challenge of Religious Discrimination at the Dawn of the New Millennium (Martinus Nijhoff Publishers, Leiden & Boston 2004), pp 133–155, at pp 153–154;CrossRefGoogle Scholar and Boyle, K, ‘Human Rights, Religion and Democracy: The Refah Party Case’ (2004) 1(1) Essex Human Rights Review, 1, at 12–14.Google Scholar
16 Cullen, H, ‘Case Commentary—R (Williamson) v Secretary of State for Education and Employment—Accommodation of Religion in Education’ (2004) 16(2) Child and Family Law Quarterly 231, at 233–234.Google Scholar John Eekelaar also argued that ‘[q]uestions of value demand a wider perspective than that apparently allowed in a determination under Article 9(1) alone’: Eekelaar, J, ‘Corporal punishment, parents' religion and children's rights’ (2003) 119 LQR 370 at 372.Google Scholar
17 Williamson, paragraphs 36–37. The rights of the parents (but not of the teachers) under the Protocol were also engaged.Google Scholar
18 Williamson, paragraph 35.Google Scholar
19 Arrowsmith v United Kingdom, Application 7050/75 (1978).Google Scholar
20 Evans, M (n 15 above) at 138.Google Scholar
21 Valsamis v Greece and Efstratiou v Greece, Applications 21787/93–24095/94 (1996).Google Scholar
22 Seven Individuals v Sweden, Application 8811/79 (1982).Google Scholar
23 Williamson, paragraph 32.Google Scholar
24 Williamson, paragraphs 48–49.Google Scholar
25 Williamson, paragraphs 50–51.Google Scholar
26 Williamson, paragraph 71.Google Scholar
27 Williamson, paragraph 74.Google Scholar
28 Martins Casimiro and Cerveira Ferreira v Luxembourg, Application 44888/98 (1999).Google Scholar
29 Çiftçi v Turkey, Application 71860/01 (2004).Google Scholar
30 Wisconsin v Yoder 406 US 205 (1972), at 241–242. He said that in the dispute opposing the state to the Old Amish Order community about exempting children from the last two years of the state's compulsory education requirements, the children were not parties to the procedure and their religion had not been ascertained.Google Scholar
31 Christian Education South Africa v Minister of Education (2000) 4 SA 757, (2000) 9 BHRC 53.Google Scholar
32 Eg United Nations Convention on the Rights of the Child (1989), Arts 3(1), 37, 19(1) and 28(2).Google Scholar
33 Concluding Observations: United Kingdom of Great Britain and Northern Ireland, UN Doc CRC/C/15/Add.34 (1995) and UN Doc CRC/C/15/Add.188 (2002).Google Scholar
34 Williamson, paragraph 86.Google Scholar
35 Williamson, paragraph 86.Google Scholar
36 Eekelaar, J (above), (2003) 119 LQR 370 at 372.Google Scholar
37 Eekelaar at 375.Google Scholar
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