Cross about work

The headline in today's Telegraph (10 March 2012) warns of an impending ECHR case in which the claimants want to establish the right to wear a cross at work, as a symbol of their religious faith.

A few questions:

- should the state have anything to do with workplace clothing regulations?

- if so, should it allow exemptions on health and safety grounds, or for any other reason?

- if so, who is going to decide what is a genuine symbol, or someone taking the mickey?

- what of religious institutions such as faith schools?

Same-sex marriage again

For Halsbury's Law Exchange

Last year the Scottish government began a consultation process asking if marriage in Scotland should be allowed for gay people through a civil or religious ceremony. The strength of opposing feelings on the issue is hinted at by the fact that on Valentine’s Day more than 1,000 people marched through Edinburgh in favour of the idea, whereas last year a pressure group calling itself “Scotland For Marriage” held a rally outside the Scottish Parliament to protest against it.


The issue has also been debated recently in Australia. Meanwhile the Nigerian government has not simply banned same-sex marriage, it has actually made the idea a criminal offence, with a penalty of 14 years’ imprisonment for any person who enters into a same-sex marriage contract or civil union. Apparently even that law was thought insufficient, and a separate offence was therefore passed which made “witness[ing], abet[ting] or aid[ing] the solemnization of same-sex-marriage” punishable by up to 10 years’ imprisonment.

It remains the case in the United Kingdom under s 11(c) of the Matrimonial Causes Act 1973 that a marriage can be entered into only by a male and a female, but there have been significant developments over the past decade or so.

The first was the passage of the Human Rights Act 1998. Article 12 of the European Convention on Human Rights provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 12 does not settle the issue because the European Court of Human Rights has decided (in Schalk and Kopf v. Austria) that it is a matter for national authorities to decide whether to allow same-sex marriage. The court’s reasoning was based in part on the fact that there was no consensus across member states on the issue (some, such as Spain, already allow same-sex marriages, but others do not).

More significant in the UK was the passing of the Civil Partnership Act 2004, which allowed same-sex couples to enter into a union conferring the same legal rights as marriage in the area of wills, tax and so on. Interestingly, the right to enter into civil unions was restricted to same-sex couples, even though the form of partnership – legal rights with no religious implications – might equally appeal to some heterosexual couples.

The next step was the lifting the restriction on conducting civil partnerships on religious premises by an amendment to the Equality Act 2010 – though (at least at present) no religious institution can be compelled to conduct them.

The remaining question is of course the most emotive of all: whether same-sex marriage will be recognised in law, and if so, whether that step will be taken (and supported) by Parliament or by the courts.

It is next to impossible to imagine that the courts will find a right to same-sex marriage in any existing domestic statute, and given that the European Court of Human Rights explicitly refused to find such a right in the Convention, that option will not be taken by the domestic courts either. Even if the courts did take the step themselves, if Parliament disagreed it could either refuse to recognise the court’s ruling (if it came from Europe) or legislate to overrule it (if it came from a domestic court).

Realistically therefore the only way a change will come about will be by an amendment by Parliament to the 1973 Act. One would expect the robust debate in Scotland to be mirrored in the rest of the country before any such step is taken.

In previous articles on the subject I have suggested a possible solution along the lines of France, to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue.

The well known American lawyer Alan Dershowitz advanced a similar view a few years ago, going one step further by arguing that the state should only confer civil partnerships, and leave the dispensing of the word “marriage” to the free market.

Either solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

No doubt many will disagree, but in response I would simply say that removing state control of the issue would leave it to the marketplace of ideas.

Free speech and street preaching

Published on Halsbury's Law Exchange here

The limits of free speech and freedom of religion are presently on trial once again with the reported prosecution of a Christian street preacher, Michael Overd, in the Magistrates’ Court. The case arises out of threatening remarks Mr Overd allegedly made in public to a homosexual couple.


The trial brings to mind a similar prosecution from earlier this century, of the street preacher Harry Hammond. I wrote about the trial for Criminal Law & Justice Weekly (vol 175, September 10 2011, p 527), and this blog is substantially based on that article.

I am insufficiently familiar with the facts of the Overd case to comment on its merits, and to do so would be inappropriate before the conclusion of the trial in any event. My comments are therefore in relation to Hammond’s case only (which was on related but not identical issues), and are not to be taken as agitating for a verdict either way with Overd’s.

Hammond was an Evangelical Christian who had been a street preacher for 20 years. The Justices described him as “a sincere man with deeply held religious beliefs and a desire to convert others to his way of thinking.” During the summer of 2001 he had a large double sided sign made bearing the words: ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’ on each side and attached to a pole.

Prior to 13 October 2001, Hammond had on at least one previous occasion preached whilst displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface the sign and leading to one person trying to set it on fire.

During the afternoon of Saturday 13 October 2001, Hammond travelled by bus to Bournemouth to preach with the sign. During the bus journey he covered the sign with a black plastic bin liner as he believed the sign might cause a fracas if displayed inside the bus, because of the reaction he had previously received.

On arriving at Bournemouth town centre, he positioned himself in a pedestrianised area and began preaching, holding the sign upright so that it was clearly visible to passers-by.

A group of 30 to 40 people gathered around him, arguing and shouting; some people in the crowd were angry, others were aggressive or distressed; some threw soil at him and one person was hit over the head with the placard.

At one point someone tried to pull the placard away from Hammond, during which he fell backwards to the ground. He got up again and continued with his preaching displaying the sign, whereupon a member of the public poured water over his head.

The police arrived and asked him to take the sign down and leave the area. He refused. Despite the fact that he seems to have been more on the receiving end of the violence, Hammond was arrested and charged with an offence under s 5 of the Public Order Act 1986. He was convicted, and then appealed by way of case stated to the Divisional Court. Sadly he died before the appeal could be heard, but the court went ahead in any event.

The court ruled that it was necessary for the prosecution to prove that the sign which Hammond was displaying was threatening, abusive or insulting and that it was within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. It was a defence for Hammond to prove that, nevertheless, his conduct was reasonable.

The court concluded, not without hesitation, that the conviction should stand. It held that (i) the words on the sign were capable of being held to be insulting, not least because they appeared to relate homosexuality and lesbianism to immorality; and (ii), notwithstanding familiar free speech arguments advanced on Hammond’s behalf, it had been open to the Justices to find his conduct unreasonable.

Harry Hammond’s life and death therefore stand as part of the matrix of religion and the law, and freedom of expression generally.

Two things have been common to many cases in that matrix, including Hammond’s. First, they concern people expressing genuine and deeply held beliefs that until very recently represented mainstream opinion in this country.

Secondly, for those involving homosexuality at least, they involve the expression or manifestation of opinions that would never be tolerated if they concerned other minority traits such as race.

Thus arises the key question at the heart of liberal philosophy: how to tolerate intolerance. In the context of free speech I have long endorsed the analogy advanced by Judge Richard Posner with America’s cold war strategy. America’s front line against the USSR, he observed, was not the Potomac but the Elbe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often offensive, sadistic, sordid or nonsensical manifestations of speech. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

Peter Tatchell, the inveterate homosexual rights campaigner, advanced a similar view when commenting on Hammond’s case at the time of the original conviction:

“Criminalising prejudiced opinions is a step too far. Where do you draw the line between legitimate robust criticism and illegitimate rank prejudice? The only circumstance where there is a clearly valid case for limiting freedom of speech is when it involves inciting violence”

No-one would have known better than Mr Tatchell that only a few years before it would have been gay rights campaigners like himself who were getting assaulted in town squares by angry crowds.

He would also have known that it was hardly likely, to put it mildly, that any passer-by would suddenly undergo a radical and irreversible change in their beliefs simply after seeing and hearing the sermons of Mr Hammond. I have seen many a street preacher but never an audience for one.

As much as I deplore homophobia, I remain uneasy with Harry Hammond being made a criminal, for two reasons. First, he was expressing a political or religious or moral viewpoint, and freedom of speech, if it is to mean anything, has to include freedom to make offensive speech on such issues (no-one is likely to complain about inoffensive speech, which accordingly is unlikely to have its freedom curtailed). The proper response for anyone who disagreed was more speech, pointing out the flaws in his arguments.

Secondly, Mr Hammond by all accounts was otherwise a law abiding citizen, who simply outlived the mores of his time. I doubt all of us will be wholly immune from the same fate.

Dr Jeffrey John: religious office and employment discrimination

Published on Halsbury's Law exchange here.

Religion, equality and the law has formed the subject of many blogs on this site in the past year or so. Once again the media have found a dispute which requires balancing the competing rights. It concerns Canon Jeffrey John, who has allegedly been passed over for promotion in the Church of England because of his homosexuality. According to the Guardian:

"Dr Jeffrey John … a celibate priest who is in a longstanding civil partnership with another cleric – was prevented from becoming the bishop of Southwark after the archbishops of Canterbury and York stepped in.

Reports on Sunday suggested John had become so exasperated at his treatment that he had hired… an employment and discrimination law specialist… to fight his case under equality law."

Although the competing considerations are many, the nub of the issue can be stated simply. As a starting point, everyone has the right to practice his or her religion. Everyone also has the right to do as they please with their own premises. Employers may choose whomsoever they wish for their staff.

As against that, everyone has the right not to be discriminated against on the basis of race, gender or sexual orientation.

The question is how to balance those rights when they conflict. On one hand, if a religious employer wants all members of her or his staff to be practising members of the religion, one might say that no outsider has the right to object. If the religion in question has particular moral tenets (and all do, almost by definition), then its followers would be expected to conform with them.

On the other hand, no non-religious employer would be allowed to implement an unlawfully discriminatory employment policy on the ground of a secular moral code. For example, a law firm specialising in criminal law could not insist on recruiting only male solicitors because the crusty old partners took the view that criminal law was “not a job for ladies” (as I once heard an elderly Rumpolesque barrister opine, not so many years ago).

So does the Church’s right to run itself according to its own tenets and beliefs trump Dr John’s right not to be discriminated against in his employment?

First we need to deal with a red herring, namely whether or not Dr John is actually an “employee”. It is no answer to try and be slippery about whether church office amounts to “employment”. Recently it has been held in a different context that the relationship between priest and bishop might be akin to employment (JGE v English Province of Our Lady of Charity and another [2011] All ER (D) 50 (Nov)). Either way, there is no doubting that but for the religious context there could be no evading anti-discrimination laws by the institution in question declaring that its office holders are not employees, any more than an employee could avoid income tax by using the word “subcontractor” instead of “employee” if there was no change to the underlying contractual arrangement.

It therefore has to be decided whether there is a valid distinction between Dr John’s case and that of the hypothetical female solicitor. In the US, the distinction would run on the following grounds: there is no link between being a lawyer and being a man. On no objective ground could it be justifiable to prefer men to women for the role of a solicitor. By contrast, the male-only priesthood is a manifestation of religious belief. Thus the hypothetical law firm would be engaged in discrimination pure and simple, whereas the church’s discrimination would be a consequence of its (religious) belief that the all-male priesthood derived from Christ’s choice of the apostles.

Some argue that there is nothing in Christian sources which supports a bar on homosexuals holding high office in the church. But that is not the point. It is not for the state to decide what a religion entails. Freedom of religion means freedom for religious organisations to decide for themselves what their belief system means. Moreover, the principle of separation of church and state (and for present purposes we can discount the establishment position of the Church of England) precludes the state from deciding otherwise.

That would be the result I would expect the English courts to reach, within the framework of the right to freedom of religion under Art 9 of the European Convention on Human Rights. As mentioned, it is also what the American courts have long held.

It is not, however, a foregone conclusion. The advancement of equality legislation renders it more and more difficult in this country to find exemptions from the general law on the ground of religion, as illustrated by the well-know recent cases about registrars refusing to conduct civil partnership ceremonies, employees wishing to display religious symbols, and fostering parents with strong religious views (though in a number of cases the tabloids predictably took the judgments to mean far more than they did in reality), on which I have written a number of blogs and articles in the past.

The reason I suspect equality legislation will not – and argue that it should not – be extended to the determination of the criteria of bishop or an equivalent post in other religions is that it would amount to the state rewriting religious tenets. In that scenario there would be very little left of religious freedom. It is true that the Supreme Court felt compelled to do something similar in respect of the well-known JFS case, in which it ended up effectively vetoing the Chief Rabbi’s definition of who was Jewish, so it is not beyond the realms of possibility that Canon John’s (presently hypothetical) case might produce a similar result.

But I suspect that the grey areas are likely to be confined to questions about what constitutes a religion, or which employees fall within the status of religious office holders and thus qualify for some sort of exemption from discrimination laws. (If the religion was some fringe cult, or the employee a support staff member not involved in dispensing any of the religious duties, then any religious exemption to discrimination law would be less defensible.) Neither would be in issue in any case brought by a CofE canon, since there is no dispute that a bishop is an ecclesiastical office in a recognised religion.

As ever, it is not a solution that will please everyone. But I very much doubt any solution will ...

Religion and the law in France

Hypocrite that I am, I renegged on my promise not to write to the Times anymore.  This letter was published on 9 January 2012

Mr Edward Carey (letter, 6 January) criticises France’s integration policy, and offers the burka ban as example of its flaws. It might be said that the problem in France is not the policy as such, but the failure to implement it. A glance at the ethnic ghettos in France and lack of minority representation amongst the French great and the good suggests that France might demand that immigrants become French but too often declines to treat them as such.

The burka ban was implemented not simply as part of a policy towards the immigrant community but rather the French concept of laïcité, or separation of church and state. I do not think the ban was a necessary consequence of laïcité, but nonetheless that concept if implemented consistently would apply equally to immigrants and indigenous alike, and would have avoided many of the disputes in Britain of the past few years about religious exemptions for minorities.

The ties that bind us

Published on Halsbury's Law Exchange here

Prime Minister David Cameron made quite a few headlines with a passage in his recent speech to the Conservative Party Conference. Having stated that he was “consulting on gay marriage”, he went on to say:


"Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

Adam Wagner has a helpful post on the UK Human Rights Blog here. It is also a subject I have written on previously for HLE.

Mr Wagner’s post sets out the background. It seems to me that we have reached the point where Mr Cameron poses the question by having proceeded through three primary issues. The first issue was that the legal rights that marriage has long conferred, in the form of property, inheritance and so forth, were seen to discriminate against those who could not legally marry. The concept of civil partnerships was therefore created in order to provide same-sex couples with the same legal rights.

The second issue concerned the right of registrars to refuse to conduct civil partnerships on religious grounds. They were not permitted to refuse, though there may be more litigation to come on that point.

The third issue was whether religious premises should be permitted to host civil ceremonies. The law giving effect to this (s 202 of the Equality Act 2010) has not yet come into force.

We have therefore now reached, or are about to reach, the stage where civil partnerships have the same legal status of marriage; that no registrar can refuse to conduct them on religious grounds; and that religious groups may choose to host civil partnership ceremonies (but may not be forced to do so).

Two side issues arise. One is why civil partnerships have to be restricted to same-sex relationships akin to marriage: some siblings may choose to live together in a chase relationship all their lives, but they will not be permitted to enter into either a civil partnership or a marriage. The second concerns whether religious groups will always be able to refuse to conduct civil ceremonies on their premises. As enacted s 202 of the 2010 Act specifically provides that

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”

but obviously enough there will remain the possibility of change in the future as some religious groups fear.

Leaving those issues aside, however, brings us to Mr Cameron’s urging of the final step, with the end of the ban on same-sex marriages.

The fact that civil partnerships have the same legal status in domestic law is not a complete answer. The word “marriage” carries a deeply and sincerely held meaning for many, and has an ancient pedigree. We should not lightly dismiss those who object to changing it.

On the other hand, the very fact that the word carries powerful connotations gives weight to the argument that it should not be denied to those who want it. Pink News makes both of those points:

Religious gay people want religious ceremonies – something the law does not currently allow. Others, who may be religious or secular, crave the gravity and recognition the word marriage offers.

There may be no difference in the rights and benefits received by those in civil partnerships, but to be married is to make a statement – to your partner, to your loved ones, to the world.

Additionally, some straight couples ... want their relationships recognised in law without what they see as the patriarchal, traditional overtones of marriage. There is discrimination here too, as legally, they cannot have a civil partnership.

Mr Wagner in the article linked aove quotes one of the opposing viewpoints:

The Scottish Catholic Church has said it will fight the proposal in Scotland, arguing that the government did not have a mandate to “reconstruct society on ideological grounds”.

Aside from the emotional, religious and sentimental implications of the word “marriage” (which as mentioned should not be underestimated), there is the question of overseas recognition of marriages. The British concept of civil partnerships will not necessarily be recognised by foreign states should a couple emigrate. Then again, simply giving homosexual couples the right to use the word “marriage” will not necessarily mean that their marriage would be recognised abroad, at least not universally.

Personally I would not object to the term being extended to allow same-sex marriages. In the past there have been taboos – primarily social but in certain countries at certain times also legal – on mixed race or mixed religious marriages. We in Britain in the present day rightly disdain such discrimination. Further liberalizing the term to allow same-sex marriages is not, in the present context, illogical or unfair: if anything it would be the opposite.

One objection always raised is that of the “slippery slope”; if we allow x then y and z will follow. That is never a sufficient argument of itself, however. Unless we ban everything or nothing we are always on a slippery slope of sorts. No doubt some will argue that allowing gay marriage axiomatically should allow any other form of relationship – siblings, polygamy, bestiality – to marry as well; but that no more follows than to say that if homosexual marriages are prohibited so should secular marriages.

But it is fair to say that the issue is far from straightforward. In turn that means that Mr Wagner is correct that this is a matter for Parliament, not the courts (whether in this country or in Strasbourg).

I would finally reiterate the suggestion I made in the article linked above, namely:


“… a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved. Then since the ceremony would be akin to a private party or religious observance: no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets."

Such a solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

It is never possible to please everyone, but it seems to me that the solution proffered would come the closest to doing so.

R (on the application of Bashir) v Independent Adjudicator: religion in prison

Co-written with Anne-Marie Forker, and published in Criminal Law & Justice Weekly, Vol 175, 18 June 2011, p 373

The relationship between religion and the law seems now to be a permanent feature of public life in the United Kingdom – to the point where it reminds one of the children’s story about the magic pudding which, no matter how often it is eaten, always reforms in order to be eaten again.


One recent serving of the pudding concerns the right to practice religion in prison, which was the subject of R (Bashir) v Independent Adjudicator [2011] EWHC 1108 (Admin).

The facts

The claimant was required to provide a urine sample for testing for the use of controlled drugs in accordance with the policy in relation to mandatory drug testing contained in Prison Service Order 3601. The basis for the test was a suspicion that he had taken controlled substances. He was offered water before providing the sample, but refused on the ground that he was a devout Muslim who was fasting prior to a court hearing, as part of his religious preparation for the event. As a result of refusing water he was unable to provide a sufficient sample. He was charged with failing to obey a lawful rule contrary to r 51(22) of the Prison Rules 1999. He was convicted by a prison adjudicator and a penalty of 14 days’ additional detention was imposed. The adjudicator held that the claimant was not fasting as part of either Ramadan or any other religious festival, and therefore requiring him to provide a sample had been “appropriate”. The claimant applied by way of judicial review to quash the adjudicator’s decision, contending that it breached his right to practice his religion under art 9 of the European Convention on Human Rights.

The High Court

Judge Pelling found that the adjudicator’s approach to art 9 had been wrong; the correct approach required three questions: (i) whether the claimant’s rights under art 9 were engaged; (ii) if so, whether there had been an interference with those rights; and (iii) if so, whether the interference was one that was both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There was no real dispute both that art 9 was engaged and that there had been an interference with those rights. Accordingly question (iii) formed the nub of the substantive challenge. Moreover, since the drug testing was prescribed by law and at least one of the other aspects of art 9, the only aspect of (iii) that was in issue was whether it was proportionate to the end pursued.

Judge Pelling concluded that there had been no evidence before the adjudicator to suggest that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required for the purposes of providing a sample regardless of the circumstances. The decision therefore had to be quashed.

Comment

We have no dispute with the judge’s approach to art 9. Rather, our difference is with the conclusion that the drug policy could potentially be a disproportionate interference with the claimant’s rights. While the state is obliged to allow religious beliefs and practices, it is not obliged to make exceptions to the general law based on someone's religious beliefs – provided, of course, that the general law is not aimed at discriminating against or suppressing particular religions.

If it could have made no difference either to the state or to any private individual (including other prisoners), then we would have no objection to the state accommodating religious practices for prisoners. But making exceptions to the disciplinary regime – of which drug testing is at the core – is as unworkable as it is unfair. If one has an exception due to a fast, then why not some other activity? And, to ensure non-discrimination, non-religious beliefs of any particular prisoner would also have to be accommodated.

Religious exemptions are found elsewhere in the criminal law, such as s 139 of the Criminal Justice Act 1988 and ss 3 and 4 of the Offensive Weapons Act 1996, which allow Sikhs to carry the Kirpan on religious grounds. Is permitting this not increasing the likelihood of harm to others, something the criminal law aims to reduce? We are not suggesting for a moment that Sikhs are more likely than other groups to use knives in a criminal fashion, but rather that increasing the quantity of knives being carried by any section of society in the general public increases the risk of harm to others. Practicing religion should be subject to the same standards as non-religious activities (see also p 124 ante).

Contrary to the tabloid view that equality is somehow harmful to religion, we believe that excluding religion from public life is actually the best protection for religion, because it ensures all religions are treated equally.

Religion and the law once more: the circumcision debate

Published in Halsbury's Law Exchange here. 

In San Francisco an attempt is presently being made to ban the practice of male circumcision. The movement has sparked a debate in this country, with Neil Howard and Rebecca Steinfeld arguing that it should be banned and Adam Wagner countering that a ban would amount to a disproportionate interference with freedom of religion.

In my view the key lies in the correct analysis of the issue.

Howard and Steinfeld make the point that female genital mutilation is banned and therefore, as an act of equality, male circumcision should be as well. The point is not so straightforward, because male and female genitalia, to state the extremely obvious, are not the same thing. Some more analysis is required.

Wagner approaches the question on the basis of the religious rights of the parents, which in legal terms are governed by art 9 of the European Convention on Human Rights. As set out in R (on the application of Bashir) v Independent Adjudicator and others [2011] NLJ 812, the application of art 9 involves three questions:

(i) whether the claimant’s rights under art 9 are engaged;

(ii) if so, whether there has been an interference with those rights;

(iii) if so, whether the interference is one that is both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There is little doubt that a ban on circumcision would produce an affirmative answer to the first two questions. Assuming that the ban derived from an Act of Parliament it would obviously be prescribed by law. The question would then be whether it was necessary in the interest of public health or morals, and proportionate to that end.

Wagner argues that the answer is no: he does not accept that the medical evidence conclusively establishes that a ban is justified on health grounds. That being so, there would also be scope for disagreement as to whether the ban was proportionate, because circumcision is a firmly established tradition in several religions and a large number of adherents to those religions could be expected to react strongly to a ban.

Thus, on art 9 grounds, it is certainly arguable that parents should have the right to carry out the procedure.

In response I would argue that the art 9 analysis is inappropriate. This is because the religious rights of the parents are one thing, but of overriding importance are the rights of the child. The UN Convention on the Rights of the Child makes clear that the best interests of the children should be the overriding principle whenever children’s lives intersect with the law, and in my view that principle is indisputable.

The blunt fact is that circumcision not done on compelling medical grounds constitutes an assault. The onus is therefore on those wishing to carry out the procedure to show that it is nevertheless somehow in the child’s interest.

It is not possible to justify assaulting a child on the ground that the parents’ religion requires it – any more than the state should permit parents to withdraw female children from school on the ground that their culture or religion objects to girls becoming educated.

Imagine a strange cult that required children to be branded a la cattle farming with a red hot poker, or some other bizarre practice. No art 9 grounds would permit this. That circumcision might be seen as less extreme (or not) does not change the principle. Here is where the gender equality argument becomes relevant: the only difference between male and female circumcision is that the latter is banned because the harm is greater, but that is not a sufficient distinction – there is no “acceptable level of harm”.

One red herring needs to be dealt with. Smacking a child (controversial enough in itself) is an assault. But the argument in favour of doing so is that it is in the child’s interest to learn discipline. No comparable argument for circumcision exists other than medical grounds. It is not enough to say that it does not harm the child, it has to have a tangible positive benefit. If it does, then circumcision is indeed justifiable and I would abandon any objection.

The fact that male circumcision is a deeply held tradition that has lasted for thousands of years is relevant but not compelling. Slavery, sexism, blood sports and any number of other now banned and thoroughly discredited practices, cultures and beliefs could have been (and often were) defended on the same grounds.

Ultimately, practicing religion should be subject to the same standards as non-religious activities. There would be no acceptable justification for assaulting a child on secular grounds; religious practices should be held to the same standard.

One final point. See here for a superb judicial response to sexism in religion in the present context.

"We don't do God": religion in the public domain

Published in Halsbury's Law Exchange here

In Tom Wolfe's classic novel The Bonfire of the Vanities there is a very funny passage that will chime with anyone who has seen one of the more colourful litigants in person in action. In Manhattan, a most unfortunate character named Herbert Cantrell is on trial for manslaughter. Herbert has renamed himself "Herbert 92X" pursuant to his religious beliefs, although the sincerity of those beliefs is open to question. He is represented but his lawyer is so hapless, and Herbert so vociferous, that Herbert spends most of the time addressing the court in person. He insists on beginning each day in court with a reading from the Koran, and the judge, an irascible sort named Mike Kovitsky, allows this to happen to let the volatile Herbert let off steam and thus save time in the long run.

One day Herbert feels that he has been short-changed by the time allotted to his reading, and demands the right to continue. Kovitsky snarls that “We happen to live in a republic, and in this republic there is a separation of church and state”. In response Herbert triumphantly tells the judge to look behind himself, where emblazoned on the wall of the court are the words "In God We Trust". The court dissolves into fits of ill-restrained giggles; with the exception of Kovitsky, who explodes into rage, although he finds time to compliment Herbert for being so observant.

Such occasional religious references appear in various places in American public life in reality too, and according to this report from the UK Supreme Court blog the US Supreme Court has just refused to consider a challenge to the use of the words “So help me God” in the Presidential inauguration ceremony.

The case was brought by one Michael Newdow, a private individual. A few years previously Newdow had brought proceedings seeking to exclude the words “under God” during the Pledge of Allegiance in his daughter’s classroom each morning. That case ultimately failed on the ground that Newdow lacked standing to raise the issue on behalf of his daughter.

His later action initially sought an injunction to prevent the Chief Justice, John Roberts, from reciting the optional religious wording during President Obama’s ceremony in January 2009. He alleged that the wording violated the Constitution and infringed his freedom of religion (referring to the First Amendment’s establishment clause). The relief sought was later amended to include future inaugurations as well.

The case failed on the ground that the plaintiffs lacked appropriate legal standing to bring the case. Further, according to this website,

“Acting Solicitor General Neal Katyal wrote in his brief: “Because the content of the inaugural ceremony is entirely dependent on the president or president-elect’s wishes, only a judicial order running against the president or president-elect would result in the relief that [the atheists] seek. But [they] have not filed suit against the president or president-elect.”

Mr. Katyal added that the appeals court had emphasized that “a court would not have the authority to enter an injunction directly against the president in the exercise of his executive functions or against the president-elect (a private citizen) in the exercise of his personal religious beliefs.””

Leaving aside the technical legal and procedural points about standing, the case throws up an interesting question: is the President, or any other public official, merely expressing a personal view – protected by the right to freedom of speech and freedom of religion – or bringing religion into the public sphere where it should not be permitted because of the separation of church and state?

Other questions immediately present themselves too: what if the official has campaigned during the election partly on his or her religious faith? Is there a difference if she is appointed rather than elected, so that no democratic imprimatur can be claimed for her beliefs? Does it matter if the role is a narrow, technical one in respect of which religious beliefs can be seen to be irrelevant, as opposed to one with a broad scope such as that of president?

It seems to me that Mr Katyal’s reasoning is sound: the candidate should be entitled to make religious references in his or her speech, but only as an expression of personal faith.

Any public role should be required by law to be conducted without fear or favour towards all citizens, including all religious groups, which should effectively preclude any favouritism or other improper action, religiously motivated or otherwise.

That being so, expressions of private belief in public ceremonies should be unobjectionable. Indeed, it would be more honest for a public figure to be open about his or her beliefs if there is any suspicion that they have a role in his or her decision-making, as was inferred in relation to Tony Blair, for example.

On the other hand, it also follows that there should not be a compulsory religious element in public events, for that would be contrary to a separation of church and state and the requirement for the state to be neutral as between competing religions (and non-religious belief systems). In America this is easy to enforce legally because of the establishment clause. In Britain, however, it runs directly counter to the status of the Church of England. One suspects that if Mr Clegg’s constitutional reform effort gains the sort of momentum that it has so far lacked, that status may soon be within his sights.

A cross to bear

Published on Halsbury's Law Exchange here

I have written a number of posts on religion and the law over the past few months on Halsbury’s Law Exchange and elsewhere. On each occasion I have sought to work out principles of equality and freedom for general application. Among other things I have argued that employers should be free to set their own uniform standards, including in relation to religious symbols; and that employees seeking exemption from those – or indeed any of their employment duties – should agree terms beforehand or lump it. Freedom of religion does not provide religious followers with exemptions from the law applicable to everyone else.

Obviously employers ought to be fair in their uniform policies. They should not ban some religious symbols and activities but allow others, unless they have good grounds for doing so. If they run a Christian bookshop, for example, they should be entitled to ban other religious symbols and require that their staff have a pretty sound knowledge of Christianity. Or they can set up a Halal or Kosher sandwich shop and expect staff to produce food accordingly.

All of the above points apply to a story occupying some press attention of late. It seems the dispute has been settled, but the point may well arise again in future and therefore a belated post is still appropriate.

I am referring to the story of the van driver who was told to remove a palm cross from his dashboard. His employer did not want any visible religious symbols on its vehicles.

On the face of it, the employer was entitled to set its own policies on such matters; a policy excluding all religious symbols would be a rational one; and, provided it was applied equally (ie not some religions and not others), then there would or should be no legal grounds to interfere with that policy.

There is, however, another well-established principle of the common law that ought to have been observed, namely the maxim de minimis non curate lex. Or, if we are to discard the Latin, "the law does not concern itself with trifling things".

Did it really offend anyone that the driver had a common symbol on the front of his van? Apparently so, since there was a “complaint”, and indeed if one looks far enough one can probably find someone offended by anything anywhere. That would not necessarily provide grounds for the law to intervene. The better question would be should anyone have been offended? Surely not in this instance (and that is without taking into account what vans in my experience usually have displayed on their dashboards).

It is not as if the driver was asking for special privileges such as days off for religious observance or exemption from regular duties. Nor that any rational customer would be put off by viewing the symbol; it can hardly be compared to a symbol of a fascist organisation or similar.

I am reminded of one of the stories that beloved of the tabloids, namely the banning of Easter and other Christian celebrations by local authorities on the basis that they might offend the non-Christian constituents. Most such stories are apocryphal. Chances are if any are true that the non-Christians would be more offended by the assumption that they would be offended. Again, the test should be objective, not subjective - should anyone be offended. A sense of perspective, or proportion – or even a sense of humour – might not go amiss on such occasions.

The burqa ban in France

Published on Halsbury's Law Exchange here

On 11 April a new law took effect in France, banning the wearing of the burqa in public. Though there are no plans for any equivalent law in Britain, it would be idle to pretend the controversy has no relevance here.

At first sight it seems absurd that the state should regulate what clothing people choose to wear. Freedom of expression and freedom of religion require – as a strong starting point at least – the ability to display religious symbols and comply with religious tenets as to dress in public.

As ever, things are not that simple. The British state already regulates what people wear in public, for example by precluding indecently exposure. The limits of that regulation are always disputed but there is no argument for it to be repealed in toto. Further, wearing clothes with racist or otherwise offensive slogans might attract a public order prosecution. Accordingly, banning the burqa in public would not be a wholly unprecedented measure.

Whilst many might wear the burqa voluntarily, both by way of adherence to their religion and perhaps also a rejection of the oversexualisation of women in Western society, others may be forced to wear it. The new French law acknowledges the difference between the two situations: the wearer will face a fine of €450 and/or a course in “citizenship”, but a man who forces a woman to become a wearer will incur a fine of €30,000 and imprisonment. One would presume in the latter situation that there would be no prosecution of the woman.

It is not relevant that very few women (under 2,000 according to this report) actually wear the burqa in France (though if anything that is a reason in favour of the ban). Nor is the French government’s actual motivation for the ban (the subject of some speculation) relevant to whether it is morally justifiable or not.

All that said, I see no case at present for a ban in the UK. The main problem is that there are no cogent statistics showing how many women wear the item voluntarily as opposed to under duress. Given the inherent difficulties in compiling any such statistics (someone in an abusive relationship will probably not feel able to answer freely, even in an anonymous survey) it would seem unlikely there ever will be – though if anything that lends support to a ban. More importantly, however, anyone in an oppressive relationship will not be saved from abuse simply by the law preventing her from wearing a burqa in public – indeed, it risks making her a criminal as well as a victim. There is certainly a justification for the state acting against an oppressive husband who forces his wife to wear the burqa, but a burqa ban will not of itself release anyone from oppression and in any event there are already laws against domestic abuse, as well as private and public forms of assistance for its victims.

Arguments about whether the Koran really does mandate the wearing of the burqa or whether the item is simply a manifestation of extremism or a non-religious cultural practice do not settle the issue. The state is not in a position to adjudicate theological disputes, and freedom of religion precludes it from doing so in any event.

In essence, if a woman has been forced to wear the burqa by an oppressive husband she should have the right and the means (provided by the state) to leave that relationship if she wishes. If she has chosen to wear it voluntarily, her motivation – religious, cultural, fashion or other – is no-one else’s business. The resources of the state should be directed at identifying and addressing domestic abuse, not arresting people on a speculative basis because of their clothing.

Notwithstanding the above conclusion, there are particular circumstances in which both the state and private entities can and should ban the burqa (and various other items of clothing, both religious and non-religious). First, state schools should be permitted to ban religious clothing as part of the separation of church and state.

Secondly, banks, airports and other places with serious security concerns should be entitled to require burqas to be removed on their premises, as they do for anything else covering the face such as motorcycle helmets.

Thirdly, the rule of open justice – a cornerstone of the common law – should trump the right to wear a burqa. Accordingly, a witness may not insist on wearing the burqa whilst giving evidence, nor should the court be cleared whilst she is doing so. The present guidance to the contrary is, I suggest, unlawful.

Finally, I would hesitate before condemning the French, despite disagreeing with the ban. There is much to be admired in the French concept of laïcité, as foreshadowed by what I have written in earlier posts about law and religion. As a manifestation of that concept a ban may well be more justifiable.

Religion and the law: squaring the circle

Published in Halsbury's Law Exchange (in slightly diluted form) here.

Mr Aiden O’Neill QC has written a counterpoint to recent developments in law and religion, a subject on which I have written several recent posts. His view deserves a response.

Mr O’Neill summaries the present state of the law as follows:

“The courts analyse such cases from a discrimination law perspective by asking whether a person without religiously based views would have been permitted to act in any of these ways. If both a religious and a non-religious person would not have been permitted to do these things, then there is no discrimination on grounds of religion or belief.”

He criticises this approach on the basis that there is a distinction between informed religious beliefs and secular beliefs; the former, he argues, are “intimately tied into the moral values to which [the religious] would adhere, by word and deed. Failing to act on those beliefs is not an option for the religious, because a failure so to act expresses for them a denial of their beliefs.”

There are several responses. First, it would be of small consolation to someone on the receiving end of what would otherwise be unlawful discrimination to be told that the discriminator was sincerely following a prescribed moral code. I doubt, for example, whether someone deemed untouchable by hardline adherents of the Hindu caste system, or excluded by followers of the former Dutch Reform Church, would have any sympathy for Mr O’Neill QC’s views. That those are extreme examples does not change the fundamental principle of non-discrimination.

Secondly, while it is true that some religious people who have been in the courts recently may have been genuine adherents of a mainstream religion who were acting according to deeply held beliefs, others seeking a religious-based exemption from anti-discrimination laws might simply be religious adherents of convenience, who offer a religious belief as a straw defence to justify bigotry held on other grounds. The courts are ill-equipped to judge anyone’s piety.

Thirdly, one would also have to define a religion, another exercise courts are not well placed to undertake.

Fourthly, there would have to be a list of acceptable or unacceptable religious beliefs for the purposes of legal exemption. No-one would support on religious grounds stoning someone to death for adultery, or withdrawing a female child from education, or forced marriages, or female genital mutilation. But compiling such a list would be an invidious task and bound to be over or under-inclusive. Alternatively, some principles would have to be formulated for the courts to implement on a case by case basis, which would likely lead to unacceptable uncertainty.

Mr O’Neill argues that, on his analysis, being religious is akin to having a disability: the law requires that account be taken of disability and appropriate measures taken to place the disabled on an equal footing with those without that disability. He says the same should occur for religions. The analogy is false. For a start, there is no choice about having a disability, whereas people often abandon or otherwise modify their religious beliefs.

Mr O’Neill would doubtless respond that for many it is not at all possible to change their beliefs, still less is it reasonable for the law to require them to do so. Yet the analogy still does not hold up: there is nothing about having a disability which affects anyone else’s rights, still less anyone else’s right not to be discriminated against. One person having a disability is totally irrelevant to anyone else’s right not to be discriminated against on the ground of race, gender, age or sexual orientation, for example – no reasonable adjustment would have anything to do with those grounds.

Underlying Mr O’Neill’s thesis is the assumption that religious beliefs are of a different nature to secular beliefs of any form and, he inevitably has to argue, somehow more deserving of the law’s protection. He contends that “there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry.”

This argument is not sustainable. Some religions might constitute deeply held belief systems with centuries of provenance. Others might be bizarre and extremist offshoots. Recent cases have shown the difficulties inherent in distinguishing one from the other. Moreover, someone might write a scholarly thesis on the dangers of religion and seek to exclude religious people from their public establishment accordingly – not all who discriminate on secular grounds are unthinking bigots.

The overarching principle regarding religion and the law is that one is entitled to respect for the right to hold beliefs, but not those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it.

Civil partnerships and the law

Published on Halsbury's Law Exchange here.

The question of religion and the law marches on. Yet another example concerns impending changes to the Civil Partnership Act 2004. These are intended to enable the registration of civil partnerships to take place on religious premises. More detail of the incoming law and its implications can be found on this post on the UK Human Rights Blog.


There are at least three competing rights: first, the property rights of the owner of any premises on which ceremonies are conducted; second, the right of sexual equality for prospective couples; and third, the right of religious freedom for all. The proprietor may wish to allow or exclude different forms of ceremonies according to his or her beliefs; couples of any description will not expect to be turned away on the ground of their religious beliefs or their sexuality or gender; and religious bodies will wish to sanction their own ceremonies in accordance with their own beliefs and not otherwise.

First one may consider the proprietor. By choosing to offer services to the public he or she must do so within the framework of the law of the land, including equality laws. That was the point which precluded the Christian B&B owners in other well-known proceedings from arguing that they should be permitted to exclude guests on the ground that the B&B was also their home. Equally, if the state licenses an activity such as the provision of marriage ceremony services then it will do so under the applicable equality laws.

Accordingly, the second right would ‘trump’ the first in so far as the proprietor could be said to be dealing with the public. If on the other hand he was holding a private function he could invite whomsoever he pleased and the second right would not be engaged.

Assume, though, that the provision of marriage services is a service to the public, as with opening a restaurant or running a hotel. Then, one meets the objection that a religious organisation wishing to hold only its own ceremonies should be entitled to do just that, and all the more so when it is being held on its own premises too. If the state is to wield the full force of the equality laws, and decide that no discrimination in the provision of marriage services is permissible, then freedom of religion is in for a thin time.

Under the 2004 Act, however, no religious organisation is to be forced to do anything in this regard. Nor is there any prospect of Strasbourg compelling a change: the European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria ((Schalk and Kopf v Austria (App. No. 30141/04)). All that is in the offing is that religious institutions will no longer be prevented from holding civil partnerships, which on any view is an expansion of everyone’s freedom. What is not on the cards is the ability of any prospective couple to compel an institution to register their partnership, by arguing that a refusal constitutes unlawful discrimination.

Nevertheless, one cannot rule out the prospect of future change. Perhaps a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved, since the ceremony would be akin to a private party or religious observance - no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets.

There remains a residual point concerning the word “marriage”, which in law is still confined to male and female unions. I leave it to readers to decide if the principles I have set out above require a change. I would however note three things. First, if there is no actual difference in the legal status of marriage and civil partnerships, being unable to use the term in official documents is of no actual consequence. Secondly, it may be that over time opposition to merging the terms will fade in any event, as have so many formerly hotly contested equality issues. Thirdly, any change ought to come from a free vote in the House of Commons, not through the courts.

Religion and equality

Published on Halsbury's Law Exchange here.

Lord Denning once wrote “Without religion there is no morality, and without morality there is no law.” It is safe to say that today’s judiciary would not likely agree.

On 10 March Paul Diamond, the barrister who has appeared in a number of recent cases on the issue, appeared with Lord Falkner QC on Radio 4. Mr Diamond argued that recent cases showed the courts trumping the right of religious freedom with the right of sexual equality. He said that religion was a “core” human right which should not be suppressed by “enforced morality”.

Immediately he was forced to concede that there were limits to freedom of religion, such as recognising polygamy (I interpolate that it is not clearly justifiable to ban polygamy where it involves consenting adults), or if some zealot tried to prevent a female child from being educated.

Mr Diamond argued nevertheless that there were far too many restrictions in Britain at present, and that Parliament needed to step in to correct wayward judges.

The answer to Mr Diamond’s concerns is that one is entitled to respect for one’s beliefs – but not respect for those beliefs themselves. Or, to put it another way, one can practice any religion, but not demand that the taxpayer fund that practice, or that employers grant exemptions from duties or requirements on religious grounds (unless the employer and employee freely agree), or that schools grant exemptions from uniform policies or class attendance. Most certainly one cannot expect on religious grounds a different application of the criminal law (see Criminal Law & Justice Weekly, 2011, Vol 175, p 124).

Thus Mr Diamond railed against the British Airways’ ban on a member of staff wearing a crucifix, without acknowledging that the airline had the right to set its own uniform requirements. If one disagreed with the rules, one shouldn’t accept employment there. The only time the state should interfere with the airline’s policy would be if the airline was requiring indecent clothing, or clothing with racially offensive slogans on them, or some other such extreme and improbable example. This would avoid arguments over which symbols are religious as opposed to cultural or anything else, and whether one religion was receiving favourable treatment. Having said that, it does seem unfair that the airline permitted other religious symbols but not the crucifix, and it can hardly be said that the crucifix was likely to have offended any passengers and thereby damaged the airline’s business.

The same goes for the protection of religious – or any other – belief system in the context of employment. Presently the law on that issue is needlessly complex. Instead the law should provide that employees can only be hired, fired, promoted or disciplined according to conduct relevant to their employment.

Ordinarily relevant conduct would not include religious beliefs or many other belief systems. For example, the religious or political or scientific beliefs of a tax accountant would usually bear no relation to her employment, so any adverse treatment resulting from those beliefs would be unfair and potentially actionable. On the other hand, if she were suddenly persuaded after reading a political tract that all taxation was theft, and therefore it was a moral duty not to pay any, dismissal on the ground of her beliefs might well be justifiable. It would also be reasonable for a religious organisation hiring someone to give sermons to inquire into their beliefs ... All too often the present law seems to comprise the usual English method of overly complex regulation with overly complex exemptions, rather than application of principle.

The liberal approach advocated above would be the answer to another case in the news this week, namely the claim of a hunt saboteur that his anti-hunting beliefs should be protected from discrimination in the same way as religion. If he had been employed as a Master of Foxhounds then his beliefs would be relevant to his employment, and his employer could hardly be expected to permit him not to carry out any lawful duties because of his beliefs. If they were not relevant then the employer would be acting unreasonably and unlawfully by taking his views into account in hiring or dismissing him. There is no need for law makers to get bogged down in trying to define “religion”, and what secular philosophies or values deserve equivalent status to religious beliefs.

Of course there inevitably remain grey areas, and the question of whether a local authority should consider the views of prospective foster parents is a good example, though in this respect Mr Diamond went too far in his claimed consequences of the recent case on point. All that was established in that decision was that the authority was entitled to take parents’ views into account, though save in the most extreme cases it should be of little or no relevance.

Foster care and religion: the legal debate

Published on Halsbury's Law Exchange here.

In a previous post I considered the case of a Christian couple whose views on homosexuality rendered them unsuitable in the eyes of their local authority to foster children. This week a different couple were also unsuccessful in seeking to challenge their local authority on the same issue (R (Johns and another) v Derby City Council (Equality and Human Rights Commission intervening) [2011] All ER (D) 292 (Feb)), and predictably the same strident debate in the media has followed.

The judges held that there was a need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty did not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child's parents and the wider family, any of whom might be homosexual. In those circumstances, it was impossible to maintain that a local authority was not entitled to consider prospective foster carers’ views on sexuality, least of all when it was apparent that the views held and expressed might well affect their behaviour as foster carers. The authority was entitled to explore the extent to which prospective foster carers' beliefs might affect their behaviour and their treatment of a child being fostered by them.

I am a firm advocate of both sexual equality and a complete separation of Church and state, and sympathise with the authority's view accordingly. But the situation is quite complex.

The first question - not considered anywhere in the judgment or much in the literature - is whether or not the same test should apply for placing children with foster parents as for removing children from their original parents.

If the test were to be the same, then it would have to be far less intrusive than the current foster parent investigation, unless we were prepared to have the Orwellian spectre of local authorities investigating all parents and interrogating them regularly as to every aspect of their social and political views.

Given, therefore, that it is an unavoidable fact that there are millions of religious parents and they are not being deemed ipso facto unsuitable, it might be asked why the authority should concern itself with the religious beliefs of prospective foster parents. On the other hand, placing any children, still less ethnic minority children, with devout adherents of the former Dutch Reform Church would be unreasonable to say the least, as would be the case if the parents were open admirers of Osama Bin Laden who expressed the desire to swell the ranks of martyrs. One could imagine many others.

It does not therefore seem right to allow carte blanche foster placement with no investigation of the views of prospective parents.

What, therefore, should that investigation entail? Rosalind English in the UK Human Rights Blog considers that religion by definition requires a narrow minded approach to matters such as sexual orientation, blasphemy, the status of women and so on, and therefore the chances of any admitted religious adherent passing the authority's muster must be slim. They will therefore have to lie about their beliefs or not bother.

That may now be the law, but despite agreeing with Ms English that a religion almost by definition must require adherence to its own tenets and some (at least implicit) denigration of non-believers or other deviants (though not necessarily for all religions - and indeed one further point is how to define a religion), I am not persuaded that this should indeed be the law.

I return to the previous post, in which I argued that given we still (fortunately) have freedom of religion and freedom of thought, a wide mesh for tolerable views should be applied. After all, a child has to be educated in the state run or state-approved school system and it is idle to assume that children will not encounter all manner of views, good, bad, arguable and indifferent in all aspects of their life. If that school system does its job properly the children will learn to question, debate and investigate views including those of their parents. Indeed, if the state is concerned about unacceptably narrow views it should question the very concept of religious schools, which in my view are simply not compatible with the goal of a diverse, tolerant society, however excellent their academic results or disciplinary record.

There are many aspects of prospective foster parents that ought to be properly investigated - their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, previous involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be towards the top of that list.

One final point. A question was raised that the prospective carers in the instant case “would not take a Muslim child in their care to a mosque”. Children should not be considered to have a religion of their own, they should be allowed – and encouraged – to investigate and question all matters of faith and to make their own mind up in due course.

Religion and the criminal law: disregarding the faith

Published in Criminal Law & Justice Weekly, Vol 175, 26 February 2011, p 124

Without question, religion and the law constitutes one of the most contentious issues in public debate in the present day. Criminal law is no exception, as illustrated by two high profile cases from 2010.

The first was that of Shamso Miah, who punched a member of the public over an argument as to their respective places in a bank queue. The victim suffered a fractured jaw, and Miah subsequently pleaded guilty to assault occasioning actual bodily harm. Miss Cherie Booth QC, sitting as a part-time judge, imposed a sentence of two years’ imprisonment, but proceeded to suspend the sentence on the basis that “[y]ou are a religious man and you know this is not acceptable behaviour.”

Miss Booth’s remarks were widely criticised at the time, and rightly so. They are illogical for a start: the fact that Miah knew his behaviour was wrong evidently did not stop him doing it. If anything, it should have been an aggravating factor, since it demonstrates he was able to assume full responsibility for his actions.

Moreover, belief in the concept of right and wrong is not the preserve of the religious. While the subject does not lend itself to brief summary, it can be observed that many great wrongs have been, and continue to be, committed in the name of religion. It is also true that many have been committed in the name of secular ideologies. The point is that making judgements about the relative merits of secular versus religious ideology or ethics is a philosophical minefield. It is no business of the courts, certainly not in straightforward criminal cases.

In any event, trying to adopt a religious exemption or mitigation for criminal conduct would be unworkable in a multi-faith (and perhaps predominately secular) society such as the United Kingdom. There are too many differing standards amongst too many faiths, never mind trying to define the concept of a religion to begin with.

It is true as a matter of historical observation that the common law and its values have a shared history with Christian ethics, and that the United Kingdom retains an established church. But the days of the common law being actively developed by religion have long passed, and the courts regularly reiterate (correctly) that they are a secular institution.

Judges should not, therefore, make any assumption about the character of defendants based on their apparent religious beliefs, and in the particular case Miah’s should have been of no mitigation or aggravation. The relevant factors were the same as any other defendant: prior convictions or absence thereof, and positive evidence of good or bad conduct.

Of course, good conduct may be motivated by religious belief, but that is neither here nor there. It is the conduct itself, not the informing belief, which constitutes the mitigating factor.

By the same reasoning, the religious beliefs of the victim are equally irrelevant, as should have been recognised in another highly publicised case, namely the attempted murder by Roshanara Choudhry of Stephen Timms MP.

According to the sentencing remarks, Choudhry had been indoctrinated into Islamic extremism, and stabbed Timms out of "revenge" for his having supported the Iraq War. The judge went on to contrast Choudhry's values unfavourably with Timms’ strong Christian values, and when describing the latter lauded the historical relationship between Christianity and the common law.

It was right to observe that Timms was an innocent victim and that Choudhry was acting out of wholly inexcusable motives. Yet the purpose of the sentencing exercise was only to ascertain two things: first, whether the victim contributed towards the offence, and secondly, what other aggravating or mitigating factors applied to the defendant. Having established that Timms did nothing to provoke the attack, his other characteristics should have fallen away. The law does not evaluate the worthiness of criminal victims: an attempted murder is just as objectionable whether the victim is a selfish non-contributor to society or a genial philanthropist.

As to Choudhry, her beliefs were correctly judged to have been of no exculpatory or mitigating value whatsoever. They were, however, a factor in determining future risk – if she had carried out the attack in pursuance of her ideology and had no remorse or regret, then she was presumably likely to do it again.

Occasionally it is suggested that the presence of many faiths in the United Kingdom should be reflected in public institutions and processes. On the contrary, a separation of church and state is the only way that all beliefs (including non-beliefs) can be treated the same. This poses no threat to the survival of religion – quite the opposite. It ensures that no particular faith gains the favour of the state. And in the context of the criminal law it ensures that everyone is protected – and prosecuted – equally.

Witchcraft during Wartime: the trial of Helen Duncan

Published in Criminal Law & Justice Weekly, (2011) Vol 175, No. 03, p 27. 

In earlier columns I have written about wartime cases to reflect on present-day problems. Such cases are often the most instructive, because it is during wartime that a legal system is under the greatest strain, and how it reacts to that strain says a great deal about the system. Previously I have considered cases where the law reached the right conclusion. This month, however, I am concerned with a case which should never have been brought at all: that of Helen Duncan, often (incorrectly) said to be the last person in Britain to be tried for witchcraft.


Duncan held herself out to be a spiritual medium. She received minor convictions for fraudulent activities relating to her "trade" before the Second World War, but acquired lasting fame during the conflict by telling one anguished person during a séance that her son’s ship, HMS Barham, had been sunk.

News of this revelation caused alarm in Whitehall. The Barham had indeed been lost, but the Navy had suppressed the information. The reason was that intelligence had revealed that the Germans did not know about the sinking, since the U-Boat commander responsible had been unsure. Several other capital ships had been lost around the same time, and news of the Barham’s loss would have been a severe blow to morale as well as a German propaganda victory. Fearing that Duncan had access to its secrets, therefore, the state decided to put her out of business.

After some impressive pre-internet legal research by the prosecution, Duncan was charged under s 4 of the Witchcraft Act 1735, concerning “fraudulent spiritual activity” (rather than witchcraft per se). The trial that followed veered towards farce, with a number of apparently respectable people prepared to testify that her powers were genuine, but with the judge prohibiting Duncan herself from “proving” her abilities in court. She was eventually convicted by a jury and imprisoned for nine months.

After the trial Churchill lambasted the case as “tomfoolery”, and it is hard to disagree. It seems absurd that the authorities thought Duncan either a genuine medium or privy to state secrets: the fact that she guessed that a ship during wartime had been sunk hardly constitutes proof of anything.

If Duncan had indeed improperly obtained state secrets, she should have been charged on those grounds accordingly. If that was the true reason for the trial, however, but the prosecution chose instead to prosecute her under the Witchcraft Act for its own convenience, then that looks like a misuse of the legal system.

The most persuasive ground for the law’s intervention was that Duncan was exploiting the vulnerable, and that argument of course applies to all others in her vocation. There is clearly some justification for the state prosecuting charlatans. Then again, if people derive comfort from falsity, why should others object? In a free society, if competent adults wish to pay for such “services” they should have the right to do so, both as an exercise of the right to freedom of contract and the right to freedom of religion.

On the other hand, trading standards usually require that vendors do not offer for sale something they know to be false, particularly when the prospective purchaser is likely to be vulnerable.

In the absence of blatant trickery, however, the question of proof in either direction is an interesting one; after all, a good many intelligent people seem to want to believe in the Loch Ness monster, and it is not as if the veracity of mainstream religion is any more open to scientific proof. In all seriousness, the state is generally best leaving such things to the marketplace of ideas.

At most, spiritual mediums and similar types should be the concern of trading standards rather than the criminal law. There may come a point where coercion or deception merits criminal proceedings, but existing laws against intimidation or fraud should suffice in those cases. Otherwise, commercial regulation rather than specific criminal offences should be the extent of the law’s intervention, the aim being to restrict misleading advertising or otherwise protect the vulnerable rather than shut down the business altogether.

The justification is that the state should adhere strictly to the separation of church and state. On the one hand, the state should not seek to outlaw peddlers of religion and spiritualism. On the other hand no funding or official sanction should be given for spiritual or religious activities, “mainstream” or otherwise. Rather, the state should concentrate on education, surely the consumers’ best weapon against snake oil salesmen of any kind.

Coda: Recently, supporters of Duncan campaigned to have her pardoned. They were unsuccessful, though their website seeks to assure everyone that Duncan's powers were genuine. Readers can judge that one for themselves.

Religion and the law once more: response to the Guardian

A shortened version of this article has been published here.


The Guardian’s legal blogger Afua Hirsch has posted on the subject of religion and the law, something I have written about on two previous occasions for Halsbury’s Law Exchange. It is worth returning to the subject to set something against what I believe are inconsistencies and misunderstandings in Ms Hirsch’s post.

Ms Hirsch first considers the remarks of the sentencing judge in the case of Roshonara Choudry, who had been convicted of the attempted murder of Stephen Timms MP. Ms Hirsch is angered by the judge’s comments that Timms’ own faith involved very different values from those of the defendant, and the judge’s suggestion of a “cosy” relationship between Christianity and the common law.

One might note that it ought not to be controversial to contrast the values of an innocent victim with those of an attempted murderer, and that it is undeniable that Christianity played an important role in the development of the common law (though not always for good, if one considers historic religious discrimination).

That said, the judge should not have made any comparison between the respective religious values of the defendant and victim, for the simple reason that it is irrelevant to the exercise of criminal sentencing. All that is relevant, aside from the circumstances of the offence itself, is the previous conduct of the defendant. In a country with freedom of religion this does not include her conduct in spiritual matters per se (pace Cherie Booth QC, who when sitting as a deputy judge controversially cited the apparently devout religious beliefs of a defendant as a mitigating factor). Membership or association with a group agitating for murder (religious or otherwise), on the other hand, would be an aggravating factor, as any previous conviction would be.

Equally, the victim’s beliefs or any other aspect of the victim’s life is also irrelevant, except for his conduct in relation to the specific offence – that is to say the usual criminal law considerations such as provocation. Even if he was a career criminal, unless one is to support vigilantism, that cannot provide mitigation much less exculpation of the defendant.

Next Ms Hirsch attempts to link the case with “a series of incidents that have appeared to pitch religious communities against the courts”. She offers two examples: (i) that of Gary MacFarlane, a registrar dismissed for refusing on religious grounds to conduct same-sex civil ceremonies, and (ii) that of George Bathurst-Norman, a judge recently disciplined for making comments about Israeli actions in Gaza during the trial of activists alleged to have damaged an armaments factory which had supplied weapons to Israel, something she says will have offended “pro-Israeli Jewish people”.

I have already blogged on the MacFarlane case, and won’t repeat anything save to observe that the relationship with the Timms case is slim.

As to the Bathurst-Norman incident, Ms Hirsch is wrong to suggest it would only have been pro-Israeli Jewish people who objected to his comments. A free society is founded on the principle of freedom under law. The protestors had the right to demonstrate outside the factory. They had any number of options to exercise their freedom of speech to denounce the factory and the Israeli government. They could petition their MPs, and Parliament in general. They could agitate for a change in the law to ban weapons exports. They could openly denounce Judaism and urge its members to convert or abandon the faith. But their own view of the conflict in the Middle East could make – or rather should have made – no difference to their liability for criminal damage. It might be relevant as a mitigating factor in sentencing, in so far as they could be said to be idealistic campaigners rather than wanton vandals or career criminals (though not in so far as the judge happened to agree with their political stance), but it should have been irrelevant to the issue of liability.

Ms Hirsch’s grapeshot approach continues:

"But if religious communities are to have specialist courts, as Lord Carey would want, what about minority-ethnic communities – badly under-represented in the judiciary – women and other groups affected by the various strands of discrimination? Either the legal system is premised on the notion that the court system can function fairly for all, or it ceases to function at all."

“Various strands of discrimination” is a controversial way of putting the judiciary’s lack of diversity, although I agree with her second sentence. It is worth adding something in relation to Sharia courts, which Ms Hirsch mentions at the end of her article, and indeed the Beth Din as referred to by some of the comments below her article.

Separate religious law is something completely inconsistent with the separation of church and state equality before the law. The Beth Din, however – and any Sharia equivalent – is not an example of separate religious law, and this is a common and serious misunderstanding. The Beth Din is not set up or funded by the British state, and its rulings, to the extent they are inconsistent with British law, are of no legal effect. It is in fact an illustration of the English law principle of freedom of contract. Any contract – including one providing for arbitration or other form of alternative dispute resolution – will be enforced by the courts so long as it meets domestic law requirements for a valid contract, including public policy. Thus if two people conclude a contract providing for Jewish law, or some foreign law, or even a previously unheard of set of rules the parties had devised themselves, the courts will do their best to interpret and uphold that contract. To do so involves no importation of the foreign or religious laws; it is simply applying the domestic principle of freedom of contract. So too with the recognition of foreign marriages.

One important caveat remains, however: if a religious system involves principles which would be unlawful here, such as discrimination against women, then the courts will be careful before deciding that the party discriminated against would have freely agreed to subject their dispute to the religious court, and indeed whether to recognise the ruling either way, having regard to public policy. That might be viewed by some as unfair discrimination against the religious group. By others it might be seen as protecting the rights of those discriminated against by that religious group.

The boundaries of recognising controversial or even unlawful practices in the name of freedom of religion, freedom of expression and freedom of contract forms one of the central disputes in liberal philosophy. For rather different reasons, and with rather different solutions, I would agree with Ms Hirsch that this debate isn’t going to go away or become any less heated any time soon.

Still more on religion and the law

Another post for Halsbury's Law Exchange, published here.

In previous blogs on religion and the law, I have advocated the following classical liberal position (for which I claim no originality):

"[T]he state should adopt an entirely neutral stance towards religion, which involves permitting any form of belief or religion, but only to the extent that each is compatible with the law of the land. Thus there should be no religious exemptions to employment contracts (unless freely agreed between the contracting parties) or school uniforms (unless the school itself decides to permit it as part of its own policy on uniforms) or taxation. If a religion is undertaking charitable activities then those activities themselves should qualify for tax exemption, not the religious aspect. Nor should religious (or, equally, anti-religious) sensitivities be permitted to override freedom of speech, as in the Rushdie affair or any number of less extreme examples."

Adopting that straightforward principle would, among other things: not discriminate against any religion, not suppress any religion, give primacy to freedom of expression and the right not to be discriminated against, preclude discrimination in employment and save Byzantine arguments about how to define a religion.

Inevitably, however, a few grey areas remain. If a job is one in a religious institution then it would make little sense to preclude discrimination by the employer on religious grounds. A further problem was highlighted recently by a Christian couple who wished to become foster parents. They were open about the fact that their religious teachings shunned homosexuality. This apparently precluded them from passing the local authority's requirements since those banned any discrimination on the ground of sexual orientation. The couple plans to challenge the decision by way of judicial review in the High Court.

Here the approach I advocated above does not provide a simple answer. Assessing the suitability of people as foster parents is not like a normal job application. Presumably the authority would defend its position on grounds that homosexuality has long been legal in this country, and popular opinion has long moved away from discrimination on the ground of sexual orientation.

Yet there is a serious problem in the authority effectively becoming thought police. Discrimination on sexual grounds based on religion is hardly the only view considered obsolete or otherwise objectionable. Is there to be a spectrum of required political, social and religious views? What if, as the couple in this case appear to be, the candidates seem to be otherwise blameless good citizens? The number of views generally considered objectionable is limited only by the imagination. For example, how would the authority propose to deal with the following:

· Gay people who have openly disparaged practising Christians;

· Adherents of any particular religion who openly disparage non-believers;

· Adherents of any particular religion who openly discriminate against women in various respects;

· Representatives of any internecine ethnic, religious or territorial conflict anywhere in the world who have advocated aiding or abetting combatants,

Any of the above may be encouraging views that are unlawfully discriminatory at the least.

One point is that objectionable or controversial views of parents would not normally render parents unsuitable to the point where social services would be able to intervene and remove the children. That cannot be a complete answer, however, since the test to remove children has never been the same as the test to allow foster parenting and arguably should not be.

The answer, I suggest with a degree of diffidence, has to be that since people are entitled to freedom of worship in the private sphere, and freedom of expression generally, that there is no getting around the fact that parents of every kidney, be they natural, adoptive or foster, are bound to expose children to views which the majority would find unsavoury to say the least. The children will however have to be educated at a state-approved school and via that method at least ought to be made aware of discrimination and the law. Whilst there would be some cases where a parent’s views would be so harmful so as to justify precluding them from fostering children, there has to be a fairly wide mesh.

One parting shot though – the classical liberal view I have been arguing for may well preclude religious schools, on the ground that the state is responsible for education at a primary and tertiary level and is required under the liberal approach to be neutral towards religion. This would be a dramatic change for the United Kingdom, but I would suggest that observers of the Northern Irish troubles for a start would see some empirical justification. But that is an issue for a separate post – indeed many posts.

Post Script: The following comment by one SJH and my response appear below the article on HLE:

SJH:
Nov 1st, 2010 :

While this does not appear to be an attack on Christianity, the local authority is implying that one viewpoint is correct and the other is wrong, ie Christian views are outdated and must be abandoned. Homosexuality must be accepted by all. To not accept it is prejudice. Let’s say for a moment that the state decided to take the other view: Christianity is correct and homosexuality is wrong – therefore, we shall not allow gay couples to adopt or foster children. Would people also be expected to accept this? The UK is now multi-cultural and we are constantly told to accept a ‘diverse Britain’ – that’s all fine but what does this mean? Will some people have to give up their own opinions and beliefs to make way for new ones coming through? While it’s important that society grows and develops, why must a person be forced to adopt a view or live a way which goes against their beliefs? As for the children – they will grow, change and will be able to form their own opinions. Or maybe by the time these children grow up society will have a whole new set of ‘guidelines’ for us which will discriminate against a whole new set of people, while they desperately attempt to be ‘politically correct’. Discrimination laws are changing and will start to clash – the question is: who will be deciding what is essentially right and what is wrong?

My Response:

The point I was making was that assessing parents for fostering children isn’t really akin to an employment application. In an employment situation, as long as one does what one is contracted to, then one’s private life is no-one’s concern, unless they do something in public outside of the workplace that brings the employer into disrepute.

With potential foster parents, a rather more searching and personal assessment would be appropriate. But does this extend to their political and religious views? Without ruling it out completely (suppose the prospective parents spent their time exercising their right to freedom of expression by calling for ethnic cleansing of some form or another and attempting to form a modern vision of the long defunct British Fascisti), surely the permissible spectrum of views has to be wide indeed. There are any number of reasons for this, including that what the authority thinks is politically correct is likely to change over time, as you point out, and the fact that, like it or not, most people have any number of likes and dislikes, rational and irrational, that might irk some local authority functionary but does not render them unsuitable parents. The children, as you say, will gain their own views over time anyway.

Which brings one to the central question in this particular issue – the needs of the child, which (correctly) in law is the overriding question. In assessing whether it is in the interests of the child to be fostered by any particular household, the parents’ religious and political views are but one factor, and surely absent something fairly extreme not a decisive factor either. Except of course everyone agrees on fairness until it comes to defining it, and similiarly we can all agree on a wide spectrum of views until something is offered as being outside it.

James Wilson Nov 2nd, 2010 :