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EVERYDAY LAW: Power to regulate dress

EVERYDAY LAW: Power to regulate dress

By Cecil McCarthy | Wed, October 31, 2012 - 12:00 AM

Today I consider an area of the school’s responsibility. I refer to rules relating to dress.

Rules relating to dress traditionally have been seen as part of the exercise of school’s responsibility for discipline. A good example of the exercise of the power to regulate dress is the English case of Spiers vs Warrington Corporation (1954), where the Court of Queen’s Bench took the view that the power to regulate dress derived from the responsibility of the head teacher for discipline.

In that case, the articles of government provided that the head teacher “shall control the internal organization, management and discipline of the school . . .”.

Our Education Regulations provide that “subject to the policy of the minister and the general directions of the board every principal is responsible for the discipline of the school”.

The facts of the Spiers case were as follows:

Eva Spiers was a student of a secondary school in Warrington. She had suffered several attacks of rheumatic fever. Her mother responded by sending her to school in slacks in order to keep her warm.

The headmistress was not prepared to admit Eva to school unless she produced a medical certificate or permission was given for her to be examined by the School Medical Officer.

Eva’s parents would agree to neither and persisted in sending Eva to school wearing slacks. On each occasion that Eva appeared at school dressed in trousers, the headmistress refused to admit her. The matter was taken to court.

In handing down the decision in favour of the head teacher, Lord Goddard said:

“The headmistress obviously has the right and the power to prescribe the discipline for the school, and saying that a girl must come to school not wearing a particular costume, unless there is a compelling reason of health, surely she is acting in a matter of discipline, and a matter which must be within the competence of the headmaster or headmistress of any school, whether it is one of the great public schools or a country secondary school or primary school.”

A modern example of the power to regulate dress is illustrated by a recent case decided by the House of Lords (Begum vs Board Of Governors Of Denbigh High School (2006), in which the material facts were as follows:

A 14-year-old student, Shabina Begum, turned up for school wearing a jilbab (a long gown worn by women in some Muslim countries). She was sent home by the school authorities on the basis that she was not wearing the appropriate uniform of the school.

Eighty per cent of the pupils of the school were Muslims. The school permitted its female pupils to wear a headscarf known as the hijab and a tunic with trousers, (the shalwar kameeze). Shabina had accepted the dress code for two years.

Shabina, through her solicitors, challenged the decision of the head teacher and the board of governors not to admit her to school wearing the jilbab.

The judge at first instance ruled against her; the Court of Appeal ruled in her favour and House of Lords unanimously affirmed the decision of the judge.

Shabina had grounded her action in the European Convention or Human Rights. She said that the decision not to admit her wearing the jilbab was unlawful because it infringed two of her Convention rights: the right to manifest her religion in practice and in observance and the right not to “be denied the right to education”.

In delivering his judgment, Lord Scott commented on the lawfulness of the school’s insistence that Shabina should wear the school uniform in the context of domestic law.

The learned judge said:

1. “83. In my opinion, therefore, the direction to Shabina to attend school wearing the proper school uniform can only be attacked as an unlawful direction under domestic law if the school uniform rules that she was being required to obey were themselves so unreasonable as to be unlawful, or if the decision to insist upon Shabina observing the school uniform rules was similarly unreasonable.

“I regard both contentions as being virtually unarguable.”

• Cecil McCarthy is a Queen’s Counsel.

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