Questions for Session 1

1. What court decided this case? Did it agree with the court below? What courts will in future be bound by this decision? Can any courts overturn this decision?

The House of Lords. No, it overturned the decision of the Court of Appeal. All lower courts. No, as it is the highest court in the land, meaning that its authority is final.

2. What did the court decide in this case? Note that at para [2] Lord Bingham makes a statement about what the court did not decide. Why do you think he says this, and why might he think that the question is an inappropriate one for the court?

It was held that, in this case, there had been no interference with the Respondents rights. While the Lords all agreed that there were reasonable grounds for interference in this particular case, and that a persons right to hold a particular belief was qualified, they differed on their opinion of whether the Respondents rights had been interfered with. Lords Bingham, Scott and Hoffman were of the opinion they had not while Lord Nicholls and Baroness Hale dissented.

Lord Bingham needs to do so due to policy considerations if he had failed to make this clarification, this could set a precedence of other similar cases making an appearance before the court. Moreover, the role of the court is merely procedural; it is ultimately still Parliament that makes law in the form of statute. That is to say that it is not up to the court to find whether the law is fair or just, or to comment on the law at all.

3. What do Bingham and Hale disagree about? Why do they disagree?

Whether the Respondents rights had been infringed and thus by extension whether she had been wrongfully excluded by the Appellants.

On the first issue, Lord Bingham believes that the Respondent had chosen to attend the school voluntarily and so the exercising of this choice to join a secular institution meant that the Respondent had (expressed implicit consent) to abide by their standards, but Baroness Hale is of the opinion that the choice of which school to attend is exercised not so much by the Respondent herself inasmuch as it is by her parents or other similar authority, thus implying that the rights of the Respondent are still not respected to begin with.

On the second issue, Lord Bingham is of the view that the Appellants took reasonable measures to ensure that the Respondents needs and concerns were attended to and, while they could not be accommodated in line with school policy, they had at all times communicated this clearly to the Respondent and offered her other options she could so choose if she wished. However, Baroness Hale argues that there is still some form of interference as a dress code still imposes a certain set of restrictions upon the Respondent, thus preventing her from being able to fully express herself.

4. What legal sources do Bingham and Hale draw upon in their arguments? Do they use any non-legal sources and, if so, what authority do they have?

Other legal cases (case authority). Yes journal articles and publications, which count as secondary legislation.

5. Do you think this is a good decision? Why?

I feel that this is a decision that will best ensure harmony in a multi-racial and religious setting is upheld; finding in favour of the Respondent may simply set a precedence for other racial and/or religious minorities to air their grievances in court.

Questions for Session 2

1. At p 720, Vakulenko states that she does not take sides in the debate regarding the substantive outcome of these cases, i.e. she is not saying whether she thinks the court in Denbigh (and other cases) came to the right decision. So whats the point? What do you think the article is trying to do?

In addition to trying to provide a detached perspective to the debate, she has said at the outset that the purpose of her article is to highlight some of the discursive implications of framing the question of Islamic dress as one of religious rights. What this means is that she is perhaps trying to raise awareness that the question of Islamic dress is not simply one of religious rights, and that it extends far further than is commonly thought/highlight common misconceptions. 2. What arguments does Vakulenko use as a means of questioning the Denbigh decision? In what ways do her arguments differ from the sorts of argument used by Bingham and Hale in Denbigh?

At the risk of sounding stupid I dont really understand this question what is meant by arguments are you asking for it in the philosophical sense of the word (e.g. appeal to authority) or in the generic sense of what points she has put forth?

Bingham and Hale primarily rely on the rhetoric of choice as their main argument, choosing to blame it on the Respondent/Appellant respectively, whereas Vakulenko asserts that not enough consideration was given to other factors beyond the mere illusion of choice (or lack thereof).

She uses critical and feminist theory, which is split further into the strands of (1) deference to the expertise of local authorities instead of procedure and (2) the use of language in shaping arguments

On (1), she argues that relying solely on authority (which in this case was a party to the lawsuit as well) is flawed as authority is fallible as well, and that the House of Lords had failed to acknowledge this. As for (2), she appears to be arguing that the Lords are making generalisations with regards to the case and are hence oversimplifying the issue.

3. Having read Vakulenkos article, do you think that the House of Lords gives an impartial view of the facts in Denbigh?

I think they tried the best they could to do so although, on second reading, I did agree that some of the language used by the Lords hinted at an implicit bias in favour of the Appellant.

4. Do the arguments in the article change your view of Denbigh?

No?

5. If you were a judge in the House of Lords and had to make a decision on Denbigh, how would you decide it? What arguments would you use to support your decision?

I would decide it in the same way that the leading judges had on the basis that the school had neither actively excluded nor discriminated against the Respondent, and that