Try this constitutional law moot problem question...

Try this constitutional law moot problem and leave your sample skeleton argument in the comments... the best will be published in tomorrows post. 

This is a fictional scenario and the characters are all fictitious.

However, you must answer the question on the basis of real decided cases and real statutes.

The Supreme Court

R (on the application of Gerrard) (Respondent)

v.

Head teacher and Governors of Liverpool High School (Appellants)

Human rights – statutory interpretation – declaration of incompatibility – freedom of religion – right to education – ouster clause – constitutional conventions – separation of powers

Agreed facts

Liverpool High School is an Academy Secondary School taking pupils of both sexes aged 11-16. It has a very diverse intake which represents different ethnic and religious groups. About 40% of its pupils are now Muslim. It is not a faith school, and is therefore open to children of all faiths and none.

The school does not have a school uniform policy. However, the school does have a dress code that prohibits the pupils from wearing specific dress items such as: shorts, T-shirts, mini dresses, hats, and religious symbols. The head teacher believes that the school’s dress code plays an integral part in improving standards, serving the needs of a diverse community, allowing self-expression and creativity, and securing neutrality.

Section 6 of the (fictitious) School Uniform Act 1996 provides that ‘Academy secondary schools enjoy absolute discretion regarding all school uniform or dress code issues’.

Section 7 of the Act provides that ‘A school’s decisions according to section 6 shall not be questioned in any legal proceedings whatsoever’.

The respondent is Muslim. On 3 September 2012, the first day of the autumn term, the respondent (then aged nearly 14) went to the school and asked the head teacher to be allowed to attend the school wearing the long garment she had on that day, which was a long coat-like garment known as a jilbab.

The head teacher decided that the respondent should comply with the school’s dress code and told her to go home, change and return. The respondent went home and refused to attend school until she was allowed to wear a jilbab. The school, however, refused to change its position. A quick survey found that all secondary schools in a 30 miles radius also prohibit their pupils from wearing the jilbab.    

Proceedings before the court

The respondent commenced judicial review proceedings against the head teacher and the school, claiming that the decision not to admit her while wearing a jilbab was unlawful because it infringed two of her Convention rights: the right to ‘manifest [her] religion … in … practice and observance’ (article 9) and the right not to ‘be denied the right to education’ (article 2 of the First Protocol). The respondent also claimed that section 6 of the School Uniform Act 1996, when read with section 7, also infringes the Conventions rights mentioned above – and contradicts the constitutional principle of separation of powers.

Suarez J, ruling on the respondent’s application for judicial review at first instance, rejected all these contentions. The Court of Appeal, reversing the judge, accepted each of them.

The Court of Appeal decided in favour of the claimant. It held that:

1.      Section 7 of the School Uniform Act 1996 is void as it contradicts the constitutional principle of separation of powers.

2.      Section 6 of the School Uniform Act 1996 should be read as follows: ‘Academy secondary schools enjoy absolute discretion regarding all school uniform or dress code issues, as long as their decisions are not incompatible with the ECHR’.

3.      The school’s decision is incompatible with the ECHR and is void.

You are to submit pleadings before the Supreme Court.