1 Introduction

The extent to which Islam, and Islamic rituals, are compatible with the secular ethos of Europe is a hotly contested question. A legal iteration of this apparently perennial question has resurfaced once again in the UK following the English High Court’s judgment in R (On the Application of TTT) v Michaela Community School, more commonly known as the ‘prayer ban’ case. In that case, decided in 2024, a female Muslim student (hereafter ‘the claimant’) challenged her school’s decision to ban ritual prayers within the school’s premises. The ban, officially known by the school and in the case as the Prayer Ritual Policy (hereafter PRP), was introduced, according to the school, because students’ insistence on performing congregational prayers during the lunch break had led to a series of disruptive and divisive events and tensions among students that undermined the school’s distinctive disciplinarian ethos.

The claimant argued that the PRP violated her right to freedom of thought, conscience and religion under Article 9 of the European Convention on Human Rights (ECHR), which provides that:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The claimant also that argued that, since only Muslim students had expressed any interest in performing ritual prayers on the school’s premises, the PRP indirectly discriminated against Muslim students contrary to the Equality Act 2010, even though, on the face of it, the PRP prohibited all prayer rituals regardless of religion.

In deciding the case the judge, Linden J, found that the PRP did not interfere with the claimant’s right to manifest her religious beliefs under Article 9(1) of the ECHR. The main reason put forward by the school and accepted by the court was that Islamic jurisprudence allows the claimant to ‘make up’ for the missed prayers through qada,¹ which can be performed by the claimant at home or a nearby mosque after school. And even if the PRP did interfere with the claimant’s Article 9(1) rights, Linden J continued, this interference was justified under Article 9(2) for several reasons.

First, the PRP was regarded as being rationally connected to the school’s stated aim of promoting an inclusive and cohesive environment with an explicit ‘Team ethos’ and a strict approach to behaviour regulation (R (On the Application of TTT) v Michaela Community School, 2024: 196). Indeed, the school is renowned for being the country’s ‘strictest school’ and adopts ‘zero-tolerance’ school discipline policies that, for example, require students to observe total silence in classes and in corridors and punish students with immediate detentions and demerits if they forget to bring their pencils and books to class (ibid.: 47–95). Second, the judge accepted the school’s argument that facilitating daily prayers posed great logistical difficulties that the school did not have the resources to accommodate (ibid.: 200). Third, he agreed with the school that the claimant and her parents had knowingly chosen a secular school, the idea being that she could, if she wanted, transfer to another school that allows ritual prayers during the school day (ibid.: 177).

Linden J’s decision has been criticised by media commentators for ushering in a new era of militant secularism to the UK (Asbali, 2024). At the most basic level, secularism denotes the formal separation of state and religion (Kettel, 2019: 5; Maclure and Taylor, 2011: 28–32). Since the Church of England is the state’s established religious institution whose head, the king, is also the head of state, constitutionally-speaking in the UK, the ‘separation of church and state is not so clear’ (Aftab, 2019: 91). Yet overall, as Tariq Modood argues, the UK has (hitherto) adopted a position of ‘moderate secularism’ that tends to be accommodating of religious difference through laws and policies that promote ‘diversity-based inclusion’ (Modood, 2019: 2). That the prayer ban case seriously departs from Britain’s tradition of moderate secularism is reflected in the court’s rather restrictive interpretation of the scope and applicability of Article 9 (Sandberg, 2024).

This article claims that the decision in R (On the Application of TTT) v Michaela Community School rests on and perpetuates securitised and racialised assumptions regarding the cultural and societal threats posed by Islam to British/European secular-liberalism and the civilisational un-belonging of Muslims, in particular the threats represented by Muslim children whose insistence on, and practice of, religious agency contravenes prevailing secular notions regarding ideal childhood. These assumptions, moreover, have serious material consequences for the individual claimant, for Britain’s Muslim communities and for racial governance, including: the dilution of the right to freedom of religion for the claimant, and for Britain’s Muslims more generally (to the extent that it becomes meaningless), the augmentation of a new, militant style of secularism that is hostile to the presence and visibility of Islam in modern Britain, and the revival of (neo)colonialist frameworks of racial-religious governance. In putting forward these claims, this article adopts an interdisciplinary, critical and socio-legal approach that treats law (especially secular, human rights law) not as a neutral set of rules but as a fraught site of ideological struggle over power and meaning. Drawing on decolonial and critical race methodological approaches to the study of law (Jivraj, 2013; Adebisi, 2021; Aziz, 2021) and using intertextual and critical discourse analysis, the article closely excavates and dissects the problematic assumptions, reductive narrative framings and harmful implications of the decision to argue that it sets an unwelcome, even dangerous, precedent.

To that end, section two of this article maintains that, by interpreting the claimant’s insistence on her right to pray as an unreasonable and hostile position, Linden J’s discursive choices and narrative framings simultaneously deny and demonise the claimant’s legal agency. Contextualising these portrayals of the claimant within a wider post-9/11 landscape that includes anxiety about Muslim cultural difference, section two traces the ways in which this decision reinforces the securitisation of Muslim children and childhood experiences within broader public and legal discourses. Building on these arguments, section three identifies and interrogates the court’s preference for the highly disputed and evidentially uncorroborated arguments of the school. In doing so, section three identifies a certain racialised narrative being constructed about both the claimant and Muslim practices more widely: a narrative that effectively equates Islam and Islamic rituals and symbols with threat, indoctrination and even extremism. Situating this case within a wider body of ECHR jurisprudence, section four looks at the role that the concept of secularism plays in recreating the racialised idea of a clash-of-civilisations between the West/Europe and Islam, such that Islam appears to be in Europe but not of Europe (Asad, 2003: 160–5).

In closely and critically exploring the concept of secularism, and in particular militant secularism, section four questions the supposed religious neutrality offered and protected by secular laws, arguing instead that secularism has deep Christian roots and is informed by a thoroughly Christian idea of religion that denies human rights recognition and protection to non-Christian religions, especially Islam. Finally, section five looks at the neo-colonial dimensions of both secularism more generally and the judicial approaches and discourses deployed in this case more specifically. The section maintains that in deciding on the meaning and applicability of complex Islamic legal concepts such as qada, the judge’s decision disregards centuries of Islamic theological and jurisprudential scholarship in ways that have clear roots in the British legal history of colonial India.

2 Securitised Constructions of Muslim Childhood: The Politics of (un)belonging in R (On the Application of TTT) v Michaela Community School

One of the most striking features of this case is the judicial construction of the claimant and her peers as threats. Her insistence that she has the right to pray during the school day, and her refusal to comply with school policies she perceived to be unfair, are presented as unacceptable acts of defiance:

On Thursday 23 March, about 25 Year 9 pupils prayed in the yard, again using prayer mats. They included the Claimant. A senior teacher (‘Ms A’) … told them to put the prayer mats away as they were against school policy.

On the same day, Ms A made a record of what happened … When the pupils were told to put them [the prayer mats] away the majority did this but two, including the Claimant, answered back. The Claimant became very angry and repeatedly interrupted her. Ms A’s account relates her surprise at how rude and aggressive the Claimant’s tone and facial expression were, and she says that there was a level of contempt towards her which she found shocking despite her extensive experience as a teacher (R (On the Application of TTT) v Michaela Community School, 2024: 102–3. Emphasis added).

In practising political and legal agency and demanding respect for her right to religious worship, the claimant appears to contravene idealised, Western visions of children as essentially passive and non-political (Coppock and McGovern, 2014: 249). The claimant’s public manifestation of religiosity is, moreover, at odds with an ideal ‘secular Western childhood’ that is, as Jonathan Scourfield et al. argue, the mainstream vision of childhood in Europe (Scourfield et al., 2013: 1).

By implicitly connecting assertiveness and agency with aggression, this language demonises the claimant such that she no longer comes across as a child at all. Importantly, the judge does not acknowledge here the unequal power dynamics that exist between a student and their school, or express any real concern for the alarming fact that the way she had been treated by the school had, in the words of the claimant, ‘fundamentally changed how I feel about myself as a Muslim in this country’ (R (On the Application of TTT) v Michaela Community School, 2024: 231). Instead, the school’s objections to the claimant’s supposed ‘sense of entitlement’ (ibid.: 127) is endorsed, such that her insistence on her right to pray is perceived as an unacceptable act of ‘defiant behaviour’ (ibid.: 194).

What this language obscures is that the claimant is a child who is exploring an important aspect of her personality: her evolving religiosity. As Riyaz Timol argues, developing children (especially adolescents) have a ‘growing consciousness’ that manifests itself in different ways, including through a gradual ‘religious identity formation’ (Timol, 2020: 335). The United Nations Convention on the Rights of the Child (UNCRC) recognises children’s journeys to spiritual self-discovery, by protecting their independent (but progressive) right to freedom of religion (Articles 12 and 29 of UNCRC). Indeed, as child rights scholars have argued, the right that a child has to religious freedom both assumes, and seeks to fortify, the growth of children into autonomous individuals (Langlaude, 2007: 480). The idea is that guaranteeing a child’s religious freedom enables them to develop into a well-rounded, independent individual (ibid.).

However, ECHR jurisprudence, whether it comes from the European Court of Human Rights (ECtHR) or domestic courts, tends to be less child-centric. It is generally reluctant to recognise the religious autonomy of children and their independent right to practise and manifest their religious beliefs (Kilkelly, 2017: 132–6). Therefore, it is unsurprising, if disappointing, that school children deciding to pray together is not viewed simply as an act of collective worship. Rather, it is interpreted as a calculated act of rebellion:

A large number of the year 9 girls had coordinated with each other to bring in prayer mats without permission … Never before had there been a coordinated attempt to undermine the School’s rules. (R (On the Application of TTT) v Michaela Community School, 2024: 101. Emphasis added)

The rhetoric here paints the claimant and her peers as more of a menacing threat than as children. It is also noteworthy here that both the school and the court accept that, outside of the events concerning the PRP, there had been no other concerns related to the claimant’s behaviour or academic performance (R (On the Application of TTT) v Michaela Community School, 2024: 41). This suggests that the framing of her as disruptive arises solely from her wish to pray.

The simultaneous sidelining and vilification of the claimant’s religious agency is the product of a securitised approach that views Islam and Islamic religious practices as threats to liberal public order. In accepting the school’s argument that ‘permitting prayer rituals would unacceptably risk undermining inclusion and social cohesion within the School community’ (ibid:183), the court reinforces post-9/11 constructions of Muslims within wider policy and public discourse as dangerous, unintegrated ‘Others’ who undermine the secular liberal consensus of mainstream British society (Rashid, 2016: 8). As critical terrorism scholars have noted, the advent of the global War on Terror led to the emergence of a perceived ‘Muslim Problem’ in the West, and especially in Europe, underpinned by political anxieties regarding Islam’s perceived undermining of a ‘civilised’ Western way of life (Ahdash, 2018: 399–402). In the UK, policies and official discourses interpreted the cultural difference of Britain’s Muslims as a rejection of fundamental British values, defined broadly as secular tolerance, liberal democracy and gender equality (HM Government, 2011: 107; Ministry of Housing, Communities and Local Government, 2024) and directly linked their supposed lack of integration, or ‘segregation’, from mainstream British society with a propensity for extremism (HM Government, 2015: 10–13).

Prevalent within these anxieties about Britishness, the place of Islam and Muslims in modern Britain, and the ‘politics of belonging’ more generally (Yuval-Davis, 2006: 207), are concerns related to children and childhood. In a way, this is unsurprising given that global and domestic War on Terror discourses have been underpinned by representations of Muslim children that oscillate between their depiction as victims in need of rescue and as potential threats in need of control. As Catherine Scott’s critical analysis of official and media discourses during the early years of the War on Terror shows, racialised representations of ‘innocent children’ and narratives of lost childhood played an important role in justifying – indeed marketing – the War on Terror’s military campaigns as an effort to restore ‘global childhood innocence’ (Scott, 2007: 100–5). But lurking close by this image of precarious childhood innocence was the image of the Muslim child as a potential threat. Looking at the domestic counter-terrorism policies of the UK, for example, we can see that they are increasingly premised on the idea, or rather the fear, that Muslim children and youth could potentially become, as Vicki Coppock puts it, ‘tomorrow’s terrorists’ (Coppock, 2014: 115).

This pre-occupation with Muslim children is also reflected in the enlistment of schools in the government’s counter-terrorism project and the general securitisation of children’s education (Hill, 2017: 1). Over the last decade and a half, schools have been increasingly treated as sites of protective surveillance: where children’s supposed susceptibility to radicalisation can be both identified and confronted. The idea is that in being trained to look for certain radicalisation vulnerability ‘indicators’ (such as struggles with identity, preoccupation with political issues such as Palestine and questions about disadvantage) that might be on the minds of children, especially Muslim children, teachers and other education practitioners can detect and refer children considered to be susceptible to the potency of extremist Islamist narratives (Department for Children, Schools and Families, 2010; HM Government, 2012).

Situated within this wider socio-legal context where Muslim childhood has been increasingly securitised (Ahdash, 2020), the problem with ritual prayers in schools, it seems, is not so much what they are but what they symbolise : a conspicuous, and therefore unsettling, sign of precocious Muslim cultural/religious difference that can potentially disrupt the social cohesion of an imagined school community:

These arrangements would be particular to Muslim pupils and they would serve to emphasise their religious difference, in their minds and in the minds of the rest of the School community. (R (On the Application of TTT) v Michaela Community School, 2024: 198. Emphasis added)

We say imagined here because it is worth noting the exclusionary ways in which ‘School community’ is framed within this decision. The school has approximately 700 pupils (ibid.: 1) around half of whom identify as Muslim (ibid.: 147). That they were keen on praying is demonstrated by the fact that while on 22 March only around 20 pupils prayed in the school yard (ibid.: 101), by 24 March this had increased to 30 (ibid.: 105). The headteacher herself anticipated that all, or nearly all, of the school’s 350 Muslim students would wish to pray during the lunch break, contending that this would become unmanageable (ibid.: 127). Importantly, moreover, most of the Muslim parents who contacted the school around that time wanted the school authorities to provide a prayer room during the lunch break (ibid.). By any measure, then, the students wishing to pray represent a sizeable proportion of the school community. And yet, rather than being viewed as an important component of the school community, Linden J endorses the school’s framing of the Muslim students as existing outside, and even undermining the interests, of the school community. In finding that ‘that the interests of the school community take precedence over the needs of the individual’ claimant (ibid.: 2), the substantial Muslim component of the wider school community is erased in a way that echoes what Sherene Razack calls the ‘casting out’ or ‘eviction’ of Muslims from ‘political community’ in Western post-9/11 law and politics (Razack, 2008: 7).

3 The Power of Narrative: Racialised Representations of Islam and Muslims

The representations of Islam and Islamic practices in this case are not only securitised; they are also racialised. As we shall come to see in a moment, racialisation is a complex and highly disputed term. However, we can say that in Europe (and the West more broadly), racialisation denotes the different and historically, geographically and socially contingent ways in which non-white peoples are (usually negatively) essentialised to distinguish them as Other (Miles, 1989: 73–7; Selod and Embrick, 2013: 645–7).

It is true that many race scholars have cautioned against overly broad usages of racialisation as a concept, especially in relation to groups of people (such as Muslims) who do not necessarily share biological or ethnic characteristics: i.e. groups who are not races in the traditional sense (Meer, 2013: 386–387; Goldberg, 2006: 233). But over the last two decades or so, there has been a growing consensus amongst critical race scholars that racialisation should be conceived as a dynamic and evolving process that, especially in Europe, has interacted with other non-biological (i.e. cultural) markers of difference, most notably religion (Meer, 2013: 388–90; Modood, 2019: 31–5). This is most especially true, argue Didi Herman and Suhraiya Jivraj, with regard to the ‘treatment of non-Christianness’ in European laws, policies and discourses, ‘as a racial marker’ of not just cultural difference but civilisational inferiority (Jivraj and Herman, 2009: 286). This idea, or recognition, that non-Christian religious identities can be (and have been) raced in Europe is clear when we consider representations of Islam and Muslims (Garner and Selod, 2015: 9–13). Whether within historic colonial discourses or more contemporary post-9/11 securitised contexts, European perceptions of Islam have always been influenced by racialised modes of thinking that have come to signify the un-belonging of Muslims from European culture, civilisation and modern nation-states (Jivraj, 2013: 44–52; de Koning, 2020: 126).

This racialisation of Muslims happens in a number of ways, most important among them being the stereotypical depiction of Muslims as threatening and intimidating (Selod and Embrick, 2013: 647–51). Interestingly, within these racialised discourses, the danger that Muslims represent is not limited to the perceived potential security risks that they pose; it extends to a view of Islamic religious difference – especially when assertively insisted on by Muslims through public displays of religiosity – as threatening to social cohesion and community harmony (de Koning, 2020: 124; Modood, 2021: 119). Resort to this reductive stereotyping is itself emblematic, moreover, of a tendency towards over-reliance on racialised and factually inaccurate systems of representation in lieu of actually engaging with Muslim voices and epistemologies (Alsayyed, 2024: 304–6). Here we find historic and contemporary patterns of epistemic exclusion, and even epistemic erasure, that trade in serious consideration of Islamic theological and jurisprudential perspectives for easy and familiar racialised tropes (ibid.).

These modes of racialisation are reflected in how the claimant’s arguments and behaviours are understood and depicted in the case. For example, the claimant’s insistence on her right to practise ritual prayers at school is framed as a dispute between her freedom of religion and the other students’ freedom from religion:

There would still be the risk of peer pressure or intimidation of Muslim pupils who would not otherwise wish to pray, or who might be regarded as less observant more generally … Although [counsel for the claimant] criticizes the lack of investigation of these matters, [the headteacher’s] evidence about what occurred is based on her own observations and on what teachers saw and heard … There is no reason for me to do other than accept this evidence. (R (On the Application of TTT) v Michaela Community School, 2024: 196)

The portrayal of the behaviour of Muslims students undertaking acts of religious worship as inherently threatening, which, as we saw in the above discussion, is typical of racialised approaches to Islam and Muslims, is a consistent feature of the judge’s reasoning:

Ms Birbalsingh [the headteacher] was told by a teacher that one of the Muslim pupils who had not worn a headscarf had been intimidated into doing so.

The intimidation of Muslim pupils who were not fasting at family lunch and during morning break also increased.

Some of the Muslim children who were praying had been intimidated into doing so by being told by others that they were bad Muslims if they did not do so. (R (On the Application of TTT) v Michaela Community School, 2024: 105; emphasis added)

Importantly, there is no direct or cogent evidence to substantiate these various allegations of intimidation. At times, the evidence of the school’s headteacher, Ms Birbalsingh, is preferred simply because Linden J says he ‘can see no reason to disbelieve the Headteacher’ (ibid.: 81). Yet, no real reason is offered as to why the court should discredit the evidence of the claimant, except what he perceives as the claimant’s ‘somewhat negative tone’ towards the school (ibid.: 85). It is fair to say, therefore, the idea that the claimant and her Muslim peers adopted a ‘negative tone’ is rooted less in clear fact and more in racialised assumptions that come to replace the need for Muslim voices and Islamic epistemologies.

This selectivity in Linden J’s approach to the evidence before the court suggests that a certain, rather racialised, narrative about the claimant has been constructed in this case. As Eric Reiter maintains, when presented with conflicting but potentially equally valid evidential data, judges often construct a narrative by selectively including and excluding evidence in ways that are never impartial or a-political (Reiter, 2010: 56–70). In this case, for example, although the judge concedes later on in the judgment that the school’s version of the events leading to the PRP was presented to the court without any independent corroboration and was strongly contested by the claimant herself, it is still the narrative that is adopted by the court (R (On the Application of TTT) v Michaela Community School, 2024: 206–7). We see here a demonstration of Reiter’s argument that judges often impose a coherent narrative on otherwise contradictory evidence in ways that echo and reinforce prevailing socio-political metanarratives (Reiter, 2010: 78–80). By entirely accepting, without much probing or verification, the school’s argument that permitting ritual prayers during the school day is likely to make other less observant Muslim children feel pressured or intimidated into praying, Linden J reinforces racialised constructions of Islam and Islamic practices within wider politics and public discourses as being intrinsically intimidating and undermining of social cohesion.

This framing, and the lack of rigorous nuance in judicial reasoning, are familiar features of Article 9 case-law. Critical legal academic literature has repeatedly criticised the decisions of both the ECtHR and domestic courts applying Article 9 for failing to substantiate assertions made by European national authorities that Islamic religious practices could place undue pressure on others (Bhuta, 2012: 24). In Dahlab v Switzerland, for example, the ECtHR accepted the uncorroborated argument made by the Swiss authorities that preventing a school teacher from wearing the Islamic headscarf whilst teaching was necessary to protect young students from the headscarf’s ‘proselytising effect’ (2001: 13). Even though there was no evidence of any proselytisation, and no parent or child had complained to the school about the teacher’s decision to wear the headscarf, the ECtHR readily endorsed, without any questioning or critical interrogation, the state’s assertions that preventing the school teacher from manifesting her religion was necessary to protect students from pressure (ibid.). The ECtHR reiterated, and further developed, this framing in Sahin v Turkey, finding that the Turkish authorities were justified in preventing a medical student from wearing the headscarf while attending university partly because of the need to protect the rights of the claimant’s peers from potentially feeling pressured into having to observe stricter Islamic practices (2005: 39). Again, however, and as the dissenting judge pointed out, this was a generalised speculation rather than a specific, empirically evidenced concern that seemed to equate Islamic devoutness with extremism (ibid., dissenting Opinion of Judge Tulkens).

It is worth noting here that, in these cases, the courts have shown excessive deference to speculative, non-factual claims regarding future intimidation to justify limiting the religious rights of Muslim claimants. In cases where Christian religious practices and symbols are in dispute, a more rigorous judicial approach is adopted. For example, in Eweida v UK, the claimant’s dismissal for wearing a cross necklace in contravention of British Airways’ uniform policy was held to be a violation of her Article 9 rights (2013: 95). Disregarding speculations put forward by the UK national authorities about the negative impact that the cross symbol might potentially have on others, the ECtHR stressed the importance of focusing on the facts before it, finding that there was no actual evidence to suggest that the rights and interests of others had been negatively impacted by the claimant’s decision to wear the cross symbol during work hours (ibid.).

In the case of Lausti v Italy, the ECtHR went even further, upholding not only the right of an individual to wear the cross to work but even defending the right that the Italian state had to display the crucifix on the walls of public schools throughout the country, significantly narrowing the duty that states seemed to have in Dahlab and Sahin, in terms of protecting children and young people from religious pressure (2011: 71). Whereas in Dahlab, for example, the inconclusiveness of the Swiss government’s evidence did not stand in the way of the ECtHR regarding the visibility of the headscarf as a potentially indoctrinating threat to impressionable children, in Lautsi a similar inconclusiveness of evidence appeared to preclude the court from finding that there could be a risk of religious proselytisation (ibid.). Here, the justification that the ECtHR gave for the difference in approach between the headscarf and the crucifix is telling: unlike the ‘powerful external symbol’ that is the headscarf, the ECtHR found, the crucifix is a ‘passive’ (ibid.) symbol and, as such, incapable of the same degree of proselytising intimidation.

It is clear, then, that Linden J’s decision and reasoning in R (On the Application of TTT) v Michaela Community School is in line with, and reinforces, discrepancies in the treatment of Islamic and Christian religious practices within Article 9 jurisprudence. A sense that Christian religiosity properly belongs to Europe seems to encourage judges to accommodate, and find jurisprudential space for, Christian religious symbols and practices. By contrast, wider racialised anxieties, which have become even more pronounced in the post-9/11 era, regarding the presumed civilisational threat posed by Islam and Muslims to European society have apparently led to a more militantly secular approach to Islamic manifestations of the right to freedom of religion.

4 Militant Secularism or Christian Biases?

But what exactly is militant secularism? And how does it relate to secularism as a wider concept, as well as secularism’s status within the UK’s constitutional and legal arrangements? These are important questions, especially since notable emphasis is placed throughout the judgment on the notion that the respondent school is a ‘secular secondary school’ (R (On the Application of TTT) v Michaela Community School, 2024: 1, 176, 184; emphasis added). Because maintaining the secularism of the school was deemed necessary for promoting ‘inclusivity [and] social cohesion’, Linden J found that the PRP was a rational policy that protected and facilitated the school’s unique ‘Team ethos’ (ibid.). Reiterating the school’s argument that the claimant knowingly ‘chose a secular school which she knew to have a strict behavioural regime’, he reminded the claimant that, if the school’s secular ethos was no longer suitable for her, she was always ‘free to transfer to a school which would permit her to pray’ (ibid.: 7).

The idea that limiting an individual’s right to manifest their religion can be justified to protect and promote a secular public sphere is consistent with Article 9 case-law. The ECtHR has been clear that the principle of secularism is compatible with the values of democracy and human rights that underpin the ECHR (see Refah Partisi (the Welfare Party) and Others v. Turkey, 2003: 123–9). In Sahin v Turkey, discussed above, the ECtHR found that the university vice-chancellor’s decision to prohibit headscarves on campus was justified partly because of the constitutional status that the principle of secularism had in Turkey (2005: 39). A similar line of reasoning was adopted in the perhaps more factually comparable case of Dogru v France (2005). There, the ECtHR upheld the decision of the French authorities to expel a secondary school student who refused to remove her headscarf during physical education classes partly because of the incompatibility of the headscarf with secularism: a constitutional principle that, the court accepted, French state schools must adhere to (ibid.: 72–5).

In the more recent case of Osmanoglu Kocabas v Switzerland, the ECtHR agreed with the national authorities that restrictions on the applicant Muslim parents’ right to religious freedom were justified by the legitimate aim of advancing social integration and cohesion in schools through the promotion of secular values (2017: 66–7). In that case, the parents did not want their teenage daughters to attend the compulsory mixed-sex swimming lessons provided by the school on the grounds that they contravened modesty requirements mandated by their Islamic faith. In finding for the Swiss national authorities, the ECtHR agreed that mixed-sex swimming lessons were important not just for the swimming skills being taught but as an essential tool for the socialisation of ethnic and religious minority children into the secular ethos of mainstream Swiss life (ibid.). The approach of the ECtHR in these and other similar cases has led critics to argue that secularism ‘has been put on a pedestal’ (Jakuszewicz, 2021: 17) within European human rights jurisprudence, to the extent that it now determines and even restricts the meaning, scope and reach accorded to freedom of religion as protected in Article 9 of the ECHR.

Given its centrality to both this case and Article 9 case-law more generally, it is important that we pay particular attention to, and attempt to critically interrogate, the principle of secularism as understood and deployed by the courts. Secularism is, as we have already seen from the discussion in the introduction, a highly contested concept. Secularism also has a multitude of interpretations, manifesting itself in a variety of ways that reflect the diverse historical, social, political, legal and constitutional conditions under which it has developed. At one end of the spectrum, there is the ‘militant’ secularism of states such as France, Switzerland, Belgium and Turkey, which seeks to impose a strictly neutral public sphere empty of all religious affiliation. This approach to secularism is aggressive in its imposition of, or aspiration towards, an a-religious public arena: public displays of religiosity are viewed as being disruptive to the maintenance of public order, national unity and social cohesion (ibid.: 20). At the other end there is the ‘moderate’ secularism of states such as the UK, which has tended to accommodate religious diversity whilst according the nominally official state religion, Christianity, a more distinct constitutional and public role (Kettell, 2019: 5; Maclure and Taylor, 2011: 28–32).

By holding that Michaela School’s ban on ritual prayers, in the name of protecting the secular ethos of the school, did not even interfere with, much less violate, the claimant’s right to manifest her religion, it might at first appear that the court has facilitated a radical move in the UK away from moderate secularism towards a more militant style of secularism. But it is important to recognise that, since at least 2010, with the demise of New Labour and the advent of a new era of Conservative political dominance, the British state has become increasingly more ‘hostile’ to religious practices, especially Islamic practices, that are considered to be at odds with secular-liberal ‘fundamental British values’ (McCrudden, 2011: 203–4). A number of legal scholars have noted the ‘post-multiculturalist’ turn (Taylor, 2015: 18) in UK laws and policies towards a muscular ‘new secularism’ that is reflected in the ‘hardening of religious attitudes towards requests for religious accommodation’ by Muslims in work and school settings (Rivers, 2012: 390–399) and increasingly clearer limits placed on the rights of Muslim parents to bring up and educate their children in accordance with their religious beliefs (Ahdash, 2018: 404). It is probably more accurate to say, therefore, that R (On the Application of TTT) v Michaela Community School has cemented, rather than ushered in, a new era of British secularism: an era that is noticeably less tolerant of religious diversity, especially when practised by Muslims (Rivers, 2012: 399).

And yet, even the most aggressively militant form of secularism can never really achieve a truly neutral public realm. This is because, as Amelie Barras points out, the idea of secular neutrality tends to have a majoritarian bias to it (2012: 269). Laws, policies and the decisions of (domestic and supranational) courts that might seemingly be premised on the idea of defending a secular status quo often actually favour the predominant religious culture (ibid., 270–3). Unsurprisingly, in the European context, conceptions of secularism – and the limits that can legitimately be placed on individual religious rights to achieve a neutral public sphere – are in fact partial towards Christianity (Mahmood, 2006: 346).

This partiality is evident in R (On the Application of TTT) v Michaela Community School. Although the school asserted in its submissions to the court that it professed a distinctly secular ethos, it was also keen to celebrate the fact that ‘twice a week pupils attend assembly where they sing the national anthem’ (R (On the Application of TTT) v Michaela Community School, 2024: 65). Requiring children to ask a Christian God to ‘save the King’, who is also the head of the Church of England, is not considered a threat to the secular ethos of the school because Anglican Christianity is the predominant religious culture of the UK. Unlike Islamic ritual prayers, the compatibility of Christian values and norms with secularism is not even questioned (Bhuta, 2012; 12).

Indeed, we can go even further and argue that such culturally contingent approaches to secularism do not just favour Christianity; conceptually and historically, the notion of secularism itself is based on thoroughly Christian understandings of, and relationships to, religion. Secularism’s insistence on a religiously neutral public space is necessarily premised on an assumption that people’s religious lives and identities will primarily be privately lived and expressed. The idea that religion is mainly about internal conscience rather than external practice is a Christian, specifically Protestant, one (Danchin, 2011; 677) prioritising, as Talal Asad puts it, the idea of religious ‘belief as a state of mind rather than as activity in the world’ (1993: 47).

This essentially Christian understanding of religion is then universalised and imposed on non-Christian religions through international and European human rights law’s approach to freedom of religion (Yelle, 2011: 33–7). Looking specifically at the ECHR, we see that Article 9 distinguishes between the right to religious belief and the right to religious manifestation, according absolute protection to the former (Article 9 [1]) and qualified protection to the latter (Article 9 [2]). The problem, however, is that non-Christian religions are not very easily accommodated by this distinction between private religious beliefs and their outward public manifestation. Islam, for example, regards ‘visible manifestation of … religion … [as] a religious dictate of conscience’ (Evans, 2001: 39; emphasis added). Ritual prayers are a particularly illustrative example that demonstrates the awkwardness of this distinction. Within mainstream Islamic jurisprudence, there is consensus that obligatory daily prayers are an intrinsic part of belief in the faith itself (Q 19:59; Q 75:31). In addressing the obligation to pray, the Qur’an repeatedly stresses the relationship between the act of prayer and the act of belief itself (Fleet et al., 2007). This means that, with Islamic jurisprudence, someone who does not observe obligatory daily prayers is not simply regarded a sinner: to many Islamic jurists, they are not even considered a believer.

The point here is that secularism within the English legal system – and indeed secularism more generally – is not free of its historical Christian (and here specifically Protestant) religious roots. International/European human rights law, in turn, universalises this theologically-biased understanding of religiosity (Yelle, 2011: 33). As Robert Yelle argues, by separating – and according stronger protection to – internal consciousness, human rights law devalues and even ‘ghettoises’ external ritualistic religious practices, thereby privileging a Protestant conception not only of religious freedom but also of religion itself (ibid.). That, in the words of Yelle, ‘secularism inherited or merely borrowed its categories from Christianity’ (ibid.: 25) is demonstrated in the High Court’s decision in R (On the Application of TTT) v Michaela Community School to not even regard the ban on ritual prayers as an interference with, let alone a violation of, the right to freedom of religion. This conception, moreover, has Orientalist and colonial roots and dimensions (ibid.: 27) that will be explored in the following, and final, section.

5 Colonial Relics: Secular Judges Issuing fatwas

As we briefly indicated earlier, one of the main reasons that was relied on by Linden J in dismissing the claimant’s arguments regarding interference with her Article 9 rights is the idea, put forward by the school, that the claimant could always ‘make up’ her missed prayers by practising qada:

The School’s case is that the PRP does not ‘interfere’ with the Claimant’s freedom to manifest her religion or belief for the purposes of Article 9 ECHR … Islam permits the Claimant to make up for missing Duhr by performing Qada prayers later in the day. (R (On the Application of TTT) v Michaela Community School, 2024: 7)

That qada is a highly complicated Islamic theological and jurisprudential concept is reflected in the claimant’s strong contestation of this school’s framing of Qada prayers and their availability to her:

In relation to the School’s reliance on Qada as a substitute for praying at the right time … the Claimant says: ‘. … Doing Qada is less meaningful than performing the prayer at the proper time. Qada is when one makes up prayers when one has inadvertently missed them. This could be for very straightforward reasons (being asleep at the time that the prayers are supposed to have been undertaken) or for more substantive ones – i.e. a surgeon performing a complex operation clearly could not break from that to perform prayers … Being in the middle of, say a biology lesson on a winter’s afternoon would in my view be a reason for Qada, given the inconvenience that seeking to pray at that time would cause to myself and to others. Qada seems to me to be a reasonable way of dealing with that, and accommodating my religion to the world within which I live. If I have time free to pray I think it is right to pray rather than not pray. At school, because of the lunchbreak, the opportunity is there at the relevant time and in my view I should use that opportunity. I really do not think it right to seek to apply Qada to a situation such as this. It upsets me that somebody suggests that I should. That is not what Qada is for’. (R (On the Application of TTT) v Michaela Community School, 2024: 38; emphasis added)

Importantly, moreover, the only expert on Islam whose opinion was sought by the court agreed with the claimant’s understanding of the (lack of) availability of qada to her particular situation at school:

In relation to Qada, Professor Siddiqui says that ‘If one fails for any reason to perform a prayer within the specified time period, one can (and should) make it up later (qada)’… As I understand her report, consistently with [21] of the Claimant’s pleaded case, Professor Siddiqui draws a distinction between freely choosing not to pray at the allotted time – ’intentionally or deliberately’ choosing not to do so – and missing a prayer through forgetfulness or oversleeping or circumstances beyond the person’s control. Professor Siddiqui says that: ‘The dominant view is that qada prayers are prayers which compensate for prayers which have been missed owing to forgetfulness or oversleeping, not prayers which have been deliberately not observed. Therefore, qada should not be regarded as an alternative practice to missed prayers. For some scholars, if one missed a prayer deliberately, that prayer could never be made up by qada, rather, the person should seek God’s forgiveness and repent’. (ibid: 43–4; emphasis added)

Yet, despite the obvious complexity of the concept of qada and the dispute around its applicability to the claimant’s case, Linden J is able to pronounce, with remarkable confidence and without seeing the need for any further expert consultation with Islamic jurists or even Islamic jurisprudential literature, that the claimant can indeed make up her missed prayers through qada:

… [T]he evidence indicates that the effect of the PRP is that Qada is available to mitigate the failure to pray within the allotted window. The, at the very least, clear implication of the Claimant’s evidence and that of Professor Siddiqui is that Qada is not available where the adherent wilfully or voluntarily chooses not to pray during the allotted time. In any other case, such as where there would be a clash with lessons or family lunch, it is available … it is difficult to see why Qada would not be available in a case where the adherent is in a location, or subject to a regime, where prayer is prohibited. This is not to reject or question the Claimant’s belief that Qada is second best to praying at the required time; but it is to point out that the implication of what she says about her beliefs is that she is able to manifest them in accordance with the teachings of Islam notwithstanding the PRP, albeit in a modified and less satisfactory way. (ibid.: 180; emphasis added)

As noted above, the Claimant’s belief that Qada is less/unsatisfactory is not in question. The point is that the PRP is a ‘good reason’ for missing Duhr and it is consistent with her beliefs that Qada is therefore available. (ibid.: 181; emphasis added)

In adopting this emic approach to determine whether the PRP could justify the claimant’s resort to qada prayers under fiqh (Islamic jurisprudence), Linden J essentially issues a fatwa² on the scope and applicability of qada.

This is not to say that English judges cannot, or even should not, engage and grapple with Islamic legal concepts. In today’s multifaith Britain, English judges have inevitably been confronted with disputes over the meaning and applicability of specific Islamic legal concepts, especially in the context of family law cases that centre on the validity of Islamic marriages and divorces (Bowen, 2016: 173–94). However, in these cases, English judges tend – after receiving specific expert evidence from scholars trained in Islamic jurisprudence – to interpret and even conceptualise the main issue(s) of dispute through the lens of English law (ibid.). Recognising that their legal education, training and linguistic skills are limited to the confines of English/common law, judges are only able to address the Islamic consequences of a certain decision by first unpacking a particular dispute through the lens of an English law, and then finding points of convergence between English law and the relevant Islamic legal concept/provision (ibid.). That is certainly not the same as English judges determining (without much further research on the sources of Islamic jurisprudence, proficiency in the Arabic language or expert consultation of Muslim jurists) the meaning, scope and applicability of Islamic legal principles.

It is important to remember here that this phenomenon of secular judges determining the scope and meaning of non-Christian religious principles has deeply colonial roots. British courts in colonial India routinely decided on whether or not certain Indian cultural practices were ‘religious’ from the point of view of ‘Hindu Law’, confidently reviewing Sanskrit texts they had little understanding of and picking and choosing between the views of court-appointed pundits (De Roover, 2011: 43–7). And, just as in this modern-day case that we are currently discussing, these colonial pronouncements of the colonial courts had a profound impact on the religious freedom of the Indian natives: either recognising, and therefore protecting, a practice as religious, or denying its religiosity and therefore paving the way for its erasure (ibid.).

6 Concluding Thoughts

In this article, we have put forward a critical deconstruction of the English High Court’s highly controversial decision in R (On the Application of TTT) v Michaela Community School upholding a ban on ritual prayers within a school setting. Although a couple of other academic commentators have examined the decision, these academic analyses have tended to be strictly doctrinal, focusing on the question of the right to religious freedom (Sandberg, 2024; Keall and Kislowicz, 2025). The main contribution of this article has been the move away from narrow doctrinal confines, with an emphasis on the importance of studying law, religion, and race (including colonialism and Orientalism) together. Through a close interrogation of judicial rhetoric in R (On the Application of TTT) v Michaela Community School, an excavation of the discursive choices deployed in the case and the contextualisation of narrative framings within wider political, social and cultural context, the article’s theoretical innovation has been the treatment of the decision as a revealing socio-legal moment.

This moment, we have shown, tells us much about the securitisation of Muslims, especially Muslim children, in contemporary Britain, the influence that reductive racialised tropes regarding the supposed threat posed by Islam and Muslim difference has on judicial decision-making, and the endurance of the colonial roots of judicial interventions with regard to the religious practices of non-Christian subjects, in particular the epistemic dismissal and even erasure of Islamic jurisprudential perspectives. The article has also shown just how central secularism is to these old and new forms of racial governance that have either been deployed or revived by the court in R (On the Application of TTT) v Michaela Community School, demarcating (un)belonging to European civilisation and the British nation-state and delimiting the normative boundaries of appropriate performances of (innocent, non-threatening, acceptable) childhood.

Paying attention to the decision’s discursive choices and narrative framings has, moreover, highlighted with greater clarity its problematic material implications. This article has shown that this decision, which essentially berates a Muslim child for the having the temerity to insist on her right to pray and the almost deliberate failure to give any real weight, or even mere recognition, to the importance and relevance of centuries of Islamic juristic thought and scholarship, also sends a clear message. It tells young Muslims such as the claimant that the most important aspect of their religious and spiritual lives, their daily prayers, is not in fact (at least in the eyes of the law – and human rights law more specifically) that important. If this approach gains traction outside of the specific context of this case and this school, as these things tend to, the consequences could be disastrous.