Tuesday, 22 December 2009

Happy Christmas

A Happy


to All My


Wednesday, 16 December 2009

R v JFS School [2009] UKSC 15

I have now had time for a detailed reading of the Supreme Court Judgment in R v JFS School [2009] UKSC 15

The case involved the admissions policy of JFS school, a state secondary school that has been educating Jewish children in London since 1732. M’s father, wanted M to go to the school: but he wasn’t given a place because according to Orthodox Jewish principles, M is not recognised as Jewish because his mother was not herself Jewish according to those rules. In Jewish Law descent is matriineal ie through the mother. M could become an Orthodox Jew when he came of age and personally chose his religion but until then he was fixed with the religion of his parents which may have been Jewish but was clearly not Orthodox Jewish

M's mother is Italian and was originally a Catholic who converted to Judaism under the auspices of a Non Orthodox Liberal synagogue but Orthodox Jews did not recognise her conversion. M's father claimed racial discrimination, on the basis that his son was turned down because of his mother’s non-Jewish ethnic origins.

The Court split 5-4 on the main issue: the majority holding that the admissions policy amounts to direct discrimination on racial grounds.

Lady Hale said in para. 66

Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the child’s ethnic origins? In my view, it clearly is. M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic. The fact that the Office of the Chief Rabbi would have over-looked his mother’s Italian origins, had she converted to Judaism in a procedure which they would recognise, makes no difference to this fundamental fact. M was rejected, not because of who he is, but because of who his mother is. That in itself is not enough. If M had been rejected because his mother shopped in Waitrose rather than Marks and Spencer, that would not have been because of her or his ethnicity. But it was because his mother was not descended in the matrilineal line from the original Jewish people that he was rejected. This was because of his lack of descent from a particular ethnic group.

Lord Mance said in
para. 86:
Some other Jewish denominations, the Court was told, have other tests, e.g. looking, or looking also, at the patrilineal line. But all such tests look, in one way or another, at ethnic origins…. This case cannot therefore be viewed as a mere disagreement between different Jewish denominations, for example about the criteria for conversion. It turns, more fundamentally, on whether it is permissible for any school to treat one child less favourably than another because the child does not have whatever ancestry is required, in the school’s view, to make the child Jewish.

All of these rulings can be regarded as sound on a merely technical level but leads to a result which Lord Rodger’s describes in para. 226 as extraordinary.

The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.

He went on in para 228
Lady Hale says that M was rejected because of his mother’s ethnic origins which were Italian and Roman Catholic. I respectfully disagree. His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices. It was her resulting non-Jewish religious status in the Chief Rabbi’s eyes, not the fact that her ethnic origins were Italian and Roman Catholic, which meant that M was not considered for admission. The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi; they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic.

and at para. 230
Even supposing that the governors knew about his origins, they were quite irrelevant and played no part in their decision. The governors were simply asked to consider admitting him as the son of a Jewish mother. They declined to do so because his mother had not converted under Orthodox auspices. It was her non-Orthodox conversion that was crucial. In other words, the only ground for treating M less favourably than the comparator is the difference in their respective mothers’ conversions – a religious, not a racial, ground.

In Para 233 he goes on
The aim of the School, to instil Jewish values into children who are Jewish in the eyes of Orthodoxy, is legitimate. And, from the standpoint of an Orthodox school, instilling Jewish values into children whom Orthodoxy does not regard as Jewish, at the expense of children whom Orthodoxy does regard as Jewish, would make no sense. That is plainly why the School’s oversubscription policy allows only for the admission of children recognised as Jewish by the Office of the Chief Rabbi. I cannot see how a court could hold that this policy is a disproportionate means of achieving the School’s legitimate aim

Lord Brown agrees at para para. 255 quoted Munby J in the High Court case of E v JFS (Jewish Free School) [2008] EWHC 1535/1536 (Admin)

Adopting some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFS’s aims and objectives; on the contrary it would produce a different school ethos. If JFS’s existing aims and objectives are legitimate, as they are, then a policy of giving preference to children who are Jewish applying Orthodox Jewish principles is, they say, necessary and proportionate – indeed, as it seems to me, essential – to achieve those aims . . . JFS exists as a school for Orthodox Jews. If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews. Precisely. To this argument there is, and can be, no satisfactory answer.

As we Lawyers put it "I respectfully agree" because he recognised that the decision of the Court produced an absurdity and the Law should not do that certainly not the law as propounded by a Supreme Court

Faith Schools and the JFS Case

There has been a lot of Internet discussion about this case and a common theme has been criticism of JFS policy because JFS, like other Faith Schools is publicly funded.

Can I just make one point crystal clear

From a Legal point of view the fact that the school is publicly funded was totally irrelevant to the decision because private Schools are covered by the Race Relations Act just as much as state schools. If the JFS was an entirely 100% private school funded entirely by the Orthodox Jewish Community the decision in the case would have been the same.

There is a valid argument over whether there should be state funded religious schools but this is not the case over which that argument should be had.

The issue in this case is whether the Courts of Britain should have the power to decide that a particular person is Jewish when the Chief Rabbi says they are not.

Discrimination Laws v Freedom

Two deeply worrying cases in two days.
Lillian Ladele v Islington Council [2009] EWCA Civ 1357
R v JFS School [2009] UKSC 15

Lillian Ladele a Christian Registrar of Marriages who asked to be excused from performing Civil Partnerships (Same Sex Marriage in all but name) lost her claim for Religious Discrimination before the Court of Appeal. The last paragraph of the judgment makes it clear how badly Lillian was treated by her employers Islington Council but the fact that she had behaved properly and they had behaved disgracefully did not help her.

It is important to remember that Lillian was not trying to create a fuss or become a martyr. She was swapping with colleagues so that they did the Civil Partnerships and she did the marriages or other Registrar tasks so nobody who wanted a Civil Partnership was affected or even knew about her.

Two Gay registrars however complained about her doing this even though no Gay person was actually affected. In addition when she wrote to her senior manager asking if she could be excused from doing Civil Partnerships her letter was treated as "Gross Misconduct" even though it was described by both the EAT and the Court of Appeal as a "thoughtful and temperate letter" In addition private information about Lillian Ladele was provided to those Gay Employees and shared with Islington's LGBT [Lesbian Gay Bisexual Transgender] Forum.

What Islington Council clearly lack is an understanding of true Tolerance and a willingness to live and let live

An even more worrying case is the decision by the UK Supreme Court that the admissions policy of the Jewish Free School was illegal under Race Relations Law even though the admissions policy was based on historic Jewish law going back over 3000 years.

As a lawyer I can understand the technical legal argument but as a human being I regard it as a profoundly dangerous extension of state power. On the basis of this Judgment an adult who Orthodox Jews do not accept as Jewish can apply to become an Orthodox Rabbi and the Orthodox Synagogue cannot say no.

What next will the courts have the power to say "The Pope does not accept that you are a Catholic but we do and so you are entitled to become a Catholic Priest". On the basis of this judgment that is a possibility because at its heart what the judgment of the Supreme Court does is to attack the right of organisations and religions to have their own personal identity. It is the most insidious form of totalitarianism

Monday, 14 December 2009

Harassment and Hatred in Liverpool and Canada

Two cases this week involving Religion and Free Speech are interesting. In Liverpool a Christian couple were cleared on a charge of harassing a Muslim guest who was staying in their Hotel and in Alberta, Canada a Christian Pastor was cleared on an allegation of inciting hatred of homosexuals. Both cases were very different in their facts but underlying them both is the common question of whether or where the law should become involved in situations where people are offended by another person expressing their personal opinions.

In the Liverpool case Ben and Sharon Vogelzang were charged with religiously aggravated use of
"threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress"
contrary to s5 Public Order Act 1986. They were alleged to have insulted a Muslim guest at their hotel when she came down wearing a Hijab, they were alleged to have described Mohammed as a warlord and the Hijab as a symbol of female subjugation. At the end of a two day trial the District Judge rejected the prosecution case on the basis that he was not satisfied about the complainants evidence.

Following the acquittal the Crown Prosecution Service has been criticised for its decision to bring the case but I do not agree with that way of thinking. I am a former Crown Prosecutor and I know that it is the job of courts, not prosecutors, to decide whether someone is guilty or innocent and no prosecutor should be criticised simply because a judge did not believe a witness. My criticism of the CPS is that the case should not have been brought regardless of whether the verdict was guilty or not guilty, to put it in terms of
The Code for Crown Prosecutors there was no "public interest" in bringing to court a case which essentially involved an argument, maybe a heated argument, but nevertheless nothing more than an argument. The Public Order Act exists in order to preserve the public peace and it should not be misused in order to stifle the expression of views however strongly expressed

In a case called Majrowski v Guy's and St. Thomas' NHS Trust [2006] UKHL 34 (which dealt with allegations of harassment under the Protection from Harassment Act 1997) in para 33 Lord Nichols said
"courts will have in mind that annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people."

whilst in
Dehal v CPS [2005] EWHC 2154 (Admin) Mr Justice Moses said, in para 5
"the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law"

Similarly in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, Jacob LJ said (at paragraphs 17-19):
“in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene"

I would suggest that Police and Prosecutors should remember these words when deciding whether to arrest people or to bring a prosecution in cases involving arguments. It may be surprising to have a situation where a Hotelier gets involved in an argument with a customer over religion and it can certainly be regarded as bad business sense but that is a long way from being anywhere close to a situation where a criminal investigation let alone a prosecution was justified. The Vogelzang case does not, of course create any legal precedent but I hope that the result and the public debate on the case will discourage the Police and CPS from bringing a similar prosecution in the future

The Canadian case of Boissoin v. Lund, 2009 ABQB 592 (CanLII) is however a precedent and it could become an important one. The case involved a letter written to an Alberta Newspaper and published on June 17 2002. The letter was written by the Rev. Stephen Boissoin, Chairman of the Concerned Christian Coalition, Red Deer, Alberta and it strongly criticised suggestions that Schools in Alberta should teach about or support homosexual practice (you can read the full letter in para 13 of the judgment)

Following the publication of the letter a Dr Lund brought a case under s3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act which says

"No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a class of persons, or
(b) is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons."

It is important to note that this did not involve a criminal prosecution by Dr Lund but rather the bringing of a civil claim before the Alberta Human Rights and Citizenship Commission which culminated in the Commission issuing an Injunction preventing Rev Boisson writing similar letters or expressing similar views in the future. In that respect the case had interesting, and disturbing parallels with the Australian case of The Islamic Council of Victoria v Catch the Fire Ministries [2004] VCAT 2510 where the Islamic Society sought an Injunction to prevent two Christian Pastors expressing their views on Islam.

The Injunction which was granted in the Catch the Fire case and the similar gagging Injunction initially granted in the Boisson case both demonstrate the dangers of giving Courts dealing with discrimination issues the power to issue Injunctions. It is the danger of abuse of Injunctions to prevent free debate, and the misuse of the concepts of Harassment, vilification etc which is the main reason why it is important to ensure that the current Equality Bill does not include a provision permitting Civil Claims involving allegations of Religious or Sexual Orientation Harassment.

The Boisson judgment merits careful reading. A large part of it deals with specifically Canadian issues regarding the legislative powers of the province of Alberta under the Canadian Constitution and so has no specific relevance to jurisdictions outside Canada but Paras 15 - 23 deals with issues of general relevance such as the danger of trying to assess whether a letter incited violence by reference to a newspaper report rather than by evidence from a witness. It also referred to the danger of courts making assumptions rather than requiring factual proof.

The second point that the Judgment makes is that letters (and by analogy posters, interviews etc) have to be read in their totality rather than "cherry picking" particular bits for condemnation, context is important. For example in paras 63-64 the Judge rejected evidence about how "Impressionable" young people might be affected by the kind of thing said in the letter by pointing out that there was no evidence that such "impressionable" young people tended to be readers of Newspaper letters pages.

The judgment was also critical of a cross examination question which was merely scurrilous rather than designed to elicit the truth
"explain the difference between the letter and Adolf Hitler’s book Mein Kampf"
This rather reminded me of a similar inappropriate question in the Catch the Fire case "do Muslims and Christians pray to the same God".

But the core of the judgment (for me at any rate is in para 95
"complaints about factual error or false reasoning by the author would seem to be properly met, at least at first instance, by counter speech correcting those failures - not by restraining the remarks"

Those words should be engraved on the desks of all Police "Hate Crime Units"

Friday, 4 December 2009

Breakaway Anglicans Can't Keep their Churches

An interesting case from Canada which might have some relevance to any Church of England parishes which are considering leaving the CofE either to join the Catholic Church following the invitation from Pope Benedict or to join any of the myriad breakaway groups currently fracturing world wide Anglicanism

In Bentley v. Anglican Synod of the Diocese of New Westminster, 2009 BCSC 1608 (CanLII) a group of parishioners in British Columbia were seeking independence from the mainstream Anglican Church of Canada (ACoC) over what they saw as its anti-Christian trends. Mr. Justice Stephen Kelleher of the British Columbia Supreme Court issued a mixed decision saying that four parishes in the Vancouver area may not keep their buildings if they remove themselves from the jurisdiction of the ACoC. Nevertheless, the court ruled, the bishop of New Westminster also does not have the right under civil or canon law to fire the trustees of the parishes. The two sides, he said, are going to have to work out their difficulties outside the courts.

The move by the parishes to secede from the ACoC came in response to a decision in 2002 by the Anglican bishop of New Westminster Michael Ingham to force all parishes to begin same-sex "blessing" ceremonies, a move that was contrary to international agreements made by the ACoC at the time. Ingham's decision was blasted by then-Archbishop of Canterbury, George Carey, who called it, a "departure from the main thrust of Anglican moral tradition."

The four parishes in question had voted in 2008 to disassociate with the Anglican Church of Canada (ACoC) and join the Anglican Network in Canada (ANiC), a recently recognized separate diocese in the Worldwide Anglican Communion affiliated with the Anglican Province of the Southern Cone. They then went to Court asking for clarification of the trustees' responsibilities in light of what they called the hostile action taken by the ACoC Bishop who threatened to fire and replace the trustees and take control of two of the churches' properties and bank accounts.

The bishop has apparently issued a statement in response to the court ruling saying that he will be removing the clergy of the four parishes and replacing them with others who will cooperate with him however those new Clergy will have to co-operate with the existing Parish Trustees who want to leave the ACoC which is hardly a recipe for a happy working parish life.

Like most Canadian Court Judgments this one is extraordinarily long (I don't know why Canadian Judges feel they have to go on as long as they invariably do, maybe it comes from having two official languages) but paras 53 - 155 provide an interesting historical review of the build up to the present problems in world wide Anglicanism.

Mr Justice Kelleher ruled that the Bishop did not have legal or canonical authority to terminate and replace the Parish trustees, but said that the trustees must exercise their authority in relation to the parish properties in accordance with the constitution, canons, rules and regulations of the diocese, "the parish properties are held on trust for Anglican ministry as defined by the [Anglican Church of Canada]."

The judgement is not, of course, binding in England but it is likely that it demonstrates the approach that English courts would follow if they were faced with a situation where a CofE parish wanted to leave the mainstream CofE but take its Church with it.

Dissident Anglicans might well claim that they are in fact the "true" Anglicans rather than, what they would see as, the present temporising and morally compromising leadership of the CofE however that is a Theological rather than a legal proposition and it is a line of argument Courts are simply not going to go down.

For the "ordinary" Civil Lawyer like me what was also interesting was that the Judge attached importance to Anglican Canon Law, that has often been considered a somewhat esoteric subject but it looks as if courts will regard it as a starting point in determining any legal disputes if any Cof E parishes try to copy their Canadian conterparts

Thursday, 3 December 2009

What Have the Polar Bears Ever Done for Us ?

There have been three cases recently which have shown both the potential and also the problems with The Employment Equality (Religion or Belief) Regulations 2003.

In the case of
Grainger Plc v Nicholson BAILII: [2009] UKEAT 0219_09_0311 which received a lot of publicity the EAT accepted that a believer in Man Made Global Warning was entitled to have his beliefs considered a "philosophical belief" and hence protected under the regulations reg 2(1) of which reads

2(1) In these Regulations—
(a) “religion” means any religion,
(b) “belief” means any religious or philosophical belief,
(c) a reference to religion includes a reference to lack of religion, and
(d) a reference to belief includes a reference to lack of belief.”

Press comment on the case suggested that this meant that belief in Climate Change had now become a religion but this is not the case the judgment clearly distinguished between a religious belief and a philosophical belief and, for example, agreed that the basis of a philosophical belief could be questioned in a Tribunal to an extent not allowed for religious beliefs however it remains to be seen how important this distinction may be in practice.

It is however important to understand firstly that Mr Nicholsons belief in Man Made Climate Change went further that mere agreement with the science of global warming as he was quoted in para 3 of the judgment

"It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears. For example, I no longer travel by airplane, I have eco-renovated my home, I try to buy local produce, I have reduced my consumption of meat, I compost my food waste, I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale"

This was expanded in para 12

"The philosophical belief is that mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same."

It is important to note that Mr Nicholsons belief in Man Made Climate Change led to him having a view as to moral behaviour and is therefore to that extent very similar to a religious belief. It was not a case that he simply believed in climate change or agreed with the scientific consensus he considered that this imposed moral obligations on him and others and for that reason I rather suspect that he will lose his actual tribunal case itself. The BBC report on the case said

"Tim Nicholson, 42, of Oxford, was made redundant in 2008 by Grainger Plc in Didcot, as head of sustainability. Mr Nicholson also accused the chief executive, Rupert Dickinson, of showing "contempt" for his concerns and claimed he once flew a member of staff to Ireland to deliver his Blackberry which he had left in London"

and the question the tribunal will have to grapple with is how far Mr Nicholson is entitled to expect his employers to act in accordance with his beliefs, how far is he allowed to"impose" his beliefs on his fellow workmates, put in religious terms does he have the right to "proselytise" and to "manifest" his belief in Man Made Global Warming and my personal answer is that I doubt that he does have that right judging by the ways in which the EAT has treated religious beliefs.

In the recent case of McFarlane v Relate BAILII: [2009] UKEAT 0106_09_3011
the EAT had to consider whether a Marriage Guidance Counselor had the right to decline to advise same sex couples and it said NO based on the case of
Ladelle v Islington Council BAILII: [2008] UKEAT 0453_08_1912
Ladelle is, of course, currently before the Court of Appeal and it will be interesting to see if it reins in the EAT decision in Ladelle which has made it extremely difficult to argue for Religious Rights in the workplace.

In another case (only at ET level) a Spiritualist accused Greater Manhester Police (GMP) of forcing him out of his job in 2008 because of his spiritualist beliefs. Apparently GMP had argued that Spiritualism was not covered by the regulations which surprised me since I would have thought that it clearly was covered, which is what the ET Judge eventually decided however merely because Spiritualism was accepted as a Religion did not mean that GMP lost the case. Mr Power lost on the basis that the decision by GMP had nothing to do with his beliefs. This case shows how, at the end of the day, most legal cases tend to turn on their own specific facts, which may of course end up as the main problem Mr Nicholson faces as he tries to explain why he has the right to decide or indeed comment on his Chief Executive using a plane to return a forgotten Blackberry.

(PS As you may have gathered from the somewhat sarcastic headline to this item I am an unrepentant Climate Change Denier, Which I suppose in view of the Nicholson case makes me a modern day heretic. At least I won't be burnt at the stake for it, just think of the Carbon emissions that would cause !)

Tuesday, 24 November 2009

Churches must lift ban on employing homosexuals ?

An article in this weeks "Observer" Newspaper says that the European Commission has told the British Government that exemptions for Religious Employers in the Employment Equality (Sexual Orientation) Regulations 2003 are illegal and do not correctly implement the European Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

The Exemptions are laid down in Reg 7(3) as follows

7(3) This paragraph applies where -
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual orientation -
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and
(c) either -
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

The Observer Article states that
"A "reasoned opinion" by its lawyers informs the government that its "exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive.
The highly unusual move means that the government now has no choice but to redraft anti-discrimination laws,

Now with the Utmost Possible Respect (as we lawyers sarcastically put it) to both the Observer and the European Commission both seem to be ignoring the fact that the question of whether the exemptions in the Regulations complied with the Directive was carefully considered by the High Court in the case of Amicus MSF Section, R (on the application of) v Secretary of State for Trade and Industry [2004] EWHC 860 In that case the Judge clearly stated that the European Directive had been properly implemented by the British Employment Regulations and the exemptions for religious organisations were legal. Nobody has appealed that decision to the European Court of Justice or to the UK Supreme Court and therefore that decision by the High Court represents the current legal position.

In a society governed by the rule of law courts decide what the law is and a legal opinion, however "reasoned" it may be, cannot overrule or take precedence over a decision by a court. Therefore the British Government is fully entitled to ignore the "reasoned opinion" from the European Commission unless and until the European Court of Justice itself gives a judgment on the issue. I would go further and state that the British Government is legally and morally obliged to ignore the European Commission view where that view, as in this case, is in conflict with a decision of the High Court which is entitled to have its decisions respected and supported by the British Government. Decisions by national courts on questions of European Law can only be overruled by the European Court of Justice and not by the bureaucrats of the European Commission no matter how "reasoned" their opinions may be.

Saturday, 7 November 2009

Italian Crucifix Case - Part 2 - Europes Dredd Scott ?

As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to implement the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc.

Article 46 of the Convention says
Binding force and execution of judgments
1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

If the Judgment is not overturned on Appeal then Italy has to report to the Council of Ministers of the Council of Europe what it is doing to implement the judgment, it cannot simply ignore it unless it withdraws from the Council of Europe and the Convention itself, in addition since the Charter of Rights in the new EU Constitution/Lisbon Treaty in effect incorporates European Convention on Human Rights into EU Law, Italy would have to withdraw from the EU if it wanted to ignore the ruling and I cannot see it doing that. Therefore unless the Grand Chamber of the ECHR overrules this Judgment on appeal Italy, and indeed the rest of Europe, has a serious problem; for example in Greek and Cypriot Schools it is common to see Icons displayed, but under this judgment those Icons will have to be removed and, arguably so will displays of Christianity from all Public buildings throughout Europe.

In the UK because of s2 of the Human Rights Act the ruling has immediate effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling. Judgments such as this tend to have a large degree of "mission creep" as they are implemented by public authorities.

However I do wonder if perhaps this Judgment may, in time, come to be seen as European "Dredd Scott" case ie a moment when the implications of a Court ruling are so significant and so contrary to public opinion that they lead to a public backlash. Americans will, be familiar with the 1857 Dredd Scott case when the US Supreme Court defended slavery to such an extent that, in effect, it extended slavery to the free as well as the slave states and that ultimately strengthened the abolitionist movement and is often quoted as a leading cause of the American Civil War. I often refer to the Dredd Scott case when arguing with my more "liberal" legal colleagues who simplistically believe that Supreme Courts are always filled with nice liberal types who will uniformly do the right thing. They are not, Judges are as prone to personal prejudices as anyone else which is the danger of trying to use the Courts to force change in society rather than relying on the slower processes of democracy, voting and debate.

If I can misquote Abraham Lincoln
"We shall lie down pleasantly dreaming that the people of Europe are on the verge of becoming a multi-faith society, and we shall awake to the reality instead, that the European Court has made Europe a non-faith society"

Thursday, 5 November 2009

Italian Crucifix Case

There is at present no Judgment in English concerning the European Court of Human Rights decision in the "Italian Crucifix Case of Lautsi v. Italy however the ECHR has issued a Press Release which can be read HERE

This seems to me to be an extraordinarily wide decision which could be used, for example, to prevent State Schools putting on Nativity Plays or even preventing Muslim Teachers wearing Hijabs in Schools, in the case of Dahlab v Switzerland in 2001 the ECHR defined the Hijab as a "religious symbol" so there are a lot of implications in saying that Religious Symbols cannot be displayed in schools. What is most surprising is that the ECHR did not apply its own concept of "Margin of Appreciation" and recognise that this type of issue should be left to individual countries to decide. In effect the ECHR has extended to the whole of Europe the French concept of strict separation between religion and state schools which ignores the different Educational traditions and systems in the separate nations of Europe.

As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to impliment the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc. In the UK because of s2 of the Human Rights Act the ruling has effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling.

We will have to see whether the ECHR may overrule itself on an appeal but in the meantime the judgment (once it is published in English) can and will apply in the UK. As a (Muslim) colleague said to me regarding this case "Human Rights seem to be increasingly used to end Human Rights"

As an aside it would have been interesting if this case had occurred before the Irish voted on the Lisbon Treaty. Before anyone emails me pointing out that the ECHR is not part of the EU, yes I know, however the Lisbon Treaty contains a Charter of Fundamental Rights Articles 10 and 14 of which conform to the provisions considered by the ECHR in this case. Article 52.3 of the Lisbon Treaty Charter of Rights says that where the Charter is equivalent to the ECHR it shall be interpreted in accordance with the ECHR decisions so this decision on the Crucifix is, in effect now part of EU law which is binding on the 27 members of the EU. I will be interested to see how Cyprus, Malta, Greece and Poland react when they realise the implications of this case. Incidentally the Lisbon Treaty Charter of Rights has 50 separate rights, the USA has managed reasonably well for 200 years with a Bill of Rights of 10 articles but thats the EU for you.

As a final, and I accept somewhat facetious point, will this ruling mean that Schools will also have to remove posters taking about global warming now that belief in Climate Change has achieved the status of a "philosophy" in Nicholson v Grainger UKEAT/0219/09/ZT I will write about this case further but it is certainly worth a read however I think Mr Nicholson may have difficulty in winning his case because what he seems to be objecting to is that his employers did not act in accordance with his (Nicholsons) beliefs and objected to him expounding them. This raises the issue of how far it is permissible to attempt to convert fellow workers to your philosophical (or religious beliefs

Wednesday, 28 October 2009

Is Polygamy a "Human Right" ?

A story from Canada is interesting and does demonstrate the dangers of reformers trying to achieve their ends though the Courts and Human Rights instruments rather than by democratic legislative change.

Back in 2003, in the case of Halpern et al. v. Canada brought by a number of same sex couples who had been refused the right to marry, the Ontario Superior Court ruled that the common law definition of Marriage violated the Canadian Charter of Rights and Fundamental Freedoms which is similar in terms to the European Convention on Human Rights. The Common Law definition of marriage was laid down by Lord Penzance in the case of Hyde v Hyde (1866) LR 1 P&D 130 (which involved the question of whether a Polygamous Mormon Marriage was recognised by the English Courts) as follows

"I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others"

Similar logic was used by the US Supreme Court in the case of Reynolds v. U.S., 98 U.S. 145 (1878) which also involved Mormon polygamy

Following the Halpern Case similar decisions were arrived at in other Canadian Provinces and this led to the Canadian Supreme Court decision in Reference re Same-Sex Marriage [2004] 3 S.C.R. 698, 2004 SCC 79 which agreed that the common law definition of marriage discriminated against same sex couples though the Court also held that Charter also protected Religious ministers from being forced to officiate at same sex marriages.

The decisions of the Canadian Courts were of course only focused on the question of same sex marriages but what the courts ignored was the fact that by destroying the Common Law definition of marriage they left the entire question of what marriage actually is completely up in the Air and that problem has now come home to roost.

In the Canadian case of Blackmore v. British Columbia (Attorney General), 2009 BCSC 1299 (CanLII) the question has been raised whether the Halpern etc decisions mean that Polygamy is now legal and the Criminal offence of Bigamy illegal

Winston Blackmore and James Oler are leaders of a
polygamous Mormon splinter group in Bountiful, near Creston, British Columbia, and are accused of being married to more than one woman at a time. (The Mormon Church banned Polygamy in 1890 though some splinter groups have always continued the practice)

They were were charged with polygamy in January of this year after a two year investigation by the Royal Canadian Mounted Police. Blackmore was charged with marrying 20 women, though he claims to have had 26 wives and more than 108 children. Oler was charged with marrying two women.

Section 293 of the Canadian Criminal Code says that anyone entering into a conjugal relationship with more than one individual at the same time is in violation of the law.

On at least two previous occasions the RCMP had recommended that arrests be made, but the Crown denied the recommendation, saying that the ban on polygamy would likely be struck down on the basis of the Canadian re-definition of marriage to include homosexual couples, and the Charter's guarantee of religious freedom. After all once you have redefined "Marriage" away from being the union of one man and one woman where does redefiniton end, Polygamy, Polyandry, multi-person multi sex unions all potentially can lay claim to the title "marriage" and the end result will be the end of the idea of marriage itself as a legal concept because if any relationship can be classified as marriage, the eventually marriage itself ceases to have meaning.

In Britain of course we have not dropped the common law definition of marriage and Same Sex Civil Partnerships are legally distinct from marriage so of course what has happened in Canada could never happen in Britain. I wonder ??

Sunday, 20 September 2009

Christian Nurses with a Cross to Bear

This is a hurried post since I am traveling between cases at present however 2 stories have struck my attention and I was even quoted in one of them

In Liverpool a Couple are charged under s5 of the Public Order Act because of what they are alleged to have said to a Muslim guest in their B&B during a discussion on religion. Now in fairness I haven't seen all the facts but as a lawyer I am increasingly concerned by the way the Police are turning to the Public Order Act merely because someone feels "offended" by what has been said. This is not what the Public Order Act is there to do. As was said by Mr Justice Moses in the case of Dehal v CPS [2005] EWHC 2154 (Admin) at para 5

"the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law"

The other story concerns a Christian Nurse ordered to stop wearing a Cross on "Health and Safety" grounds. Leaving aside the point that she has worn the cross on duty for 30 years without injuring herself or anyone else I was struck by the fact that the Trust aparently allows members of other faiths to wear religious symbols such as the Muslim Hijab or Sikh Kara. They attempted to justify this difference in treatment by saying of the Nurse "wearing a cross was not a requirement of her faith". This is a common argument used in these types of case which is both theologically illiterate and legally unjustified.

To treat members of different faiths differently is unlawful discrimination and cannot be justified by arguments about whether a religious item is a "requirement" of a faith. In the 2008 High Court case of Sikh Schoolgirl Sakira Singh [2008] EWHC 1865 (Admin) Mr Justice Silber clearly laid down that the legal test for discrimination was not whether a religious item (in that case a Sikh Kara bracelet) was religiously compulsory but rather whether the item was "an extremely important indication of faith" and wearing a cross clearly falls into that category.

In addition treating Christians differently to members of other faith creates community divisions and feelings of injustice. Members of other faiths are not objecting to Christians wearing the cross and neither should this NHS Trust

As a final point it is arguable that wearing a cross IS required by the Christian faith. The 7th Ecumenical Council of 787 said

"As the sacred and life-giving cross is everywhere set up as a symbol, so also should the images of Jesus Christ, the Virgin Mary, the holy angels, as well as those of the saints and other pious and holy men be embodied in the manufacture of sacred vessels, tapestries, vestments, etc., and exhibited on the walls of churches, in the homes, and in all conspicuous places, by the roadside and everywhere, to be revered by all who might see them. For the more they are contemplated, the more they move to fervent memory of their prototypes"

I was once on radio in a discussion about religious symbols and the law and the presenter made the usual remark that the cross wasn't compulsory for Christians unlike the Hijab or Kara so I said "Well what about the 7th Ecumenical Council of 787". Believe me if you want to stop someone dead in their tracks saying "what about the 7th Ecumenical Council" is a very good way of doing it !

Tuesday, 8 September 2009

Muslim Marriages (Again)

I cannot remember which politician it was who said that when you reach the point when you are sick to the back teeth of repeating something that is when people start listening. I am certainly sick and tired of discussing the subject of unregistered Muslim marriages (Nikah's) so hopefully some people will begin to listen.

The subject was raised recently on the August 23 entry of the Spirit21.co.uk Blog run by Shelina Zahra Janmohamed who I have met at a City Circle meeting. I like Shelina's Blog which makes some fascinating and thought provoking comments on the nature of true religious belief but I had to disagree with her recent Blog concerning Muslim Marriage which was reproduced in The Times faithOnline Blog. Basically Shelina was talking about the problems faced by British Muslim wives who go through a Nikah ceremony but whose marriage is not registered under
The Marriage Act 1949 , they are, in the eyes of the law, mere co-habitants and do not enjoy the legal protections enjoyed by wives whose marriage is registered under the Marriage Act.

Shelinas solution to the problem is to suggest that the law should be changed so as to give legal recognition to the Nikah but I strongly disagree, there is absolutely no problem with the law as it stands the only problem is that Imans and Mosques are ignoring the provisions of the Marriage Act and, arguably, committing a criminal offence for which they could be sentenced to 5 years imprisonment (s75 of the Act makes it a criminal offence to perform a marriage ceremony for a marriage that is not registered under the Act)

The Marriage Act, as it stands, recognises 3 basic types of Marriage ceremony
(i) A purely secular Marriage before a Registrar in a Registry office
(ii) A purely Secular Marriage before a Registrar in "Approved premises" eg Hotels, stately Homes etc
(iii) A Religious Marriage ceremony in a registered place of worship where a Registrar is present

Regarding option (iii) there is a slight exemption in the case of the Church of England because the CofE is the established Church Anglican Priests are also Registrars by virtue of their office. That particular status however is unique to Anglican Priests which means that Catholic priests, Jewish Rabbis, Sikh Granthis etc all have to arrange for a Registrar to be present in order for their religious marriages to be registered and that legal obligation doesn't seem to be causing them any problems. In practice most registrars at Religious Marriages are volunteer members of the Congregation who have been approved and trained by the local Superintendent Registrar, for example my Mum, after she retired, became a Registrar at her local Church and she, like thousands of other volunteers in Churches throughout the country, was responsible for attending Marriages in the Church, getting the certificates signed by the Happy Couple, and then sending the appropriate documentation off to her local Registration office. Any Mosque can similarly register itself under The Marriage Act 1949 and arrange for a member of its congregation to act as Registrar at any Nikah ceremony but only 120 Mosques have registered under the Act and, as Shelina confirms in her Blog, the majority of Muslim Marriges in Britain are not being registered under the Act.

So I repeat the questions I have asked Shelina, I have asked in this Blog, I have indeed asked Imans and to which I have not yet had an answer
"Why is it that only Islam seems to have a problem with the Marriage Act ?",
"Why is it that Imans and Mosques are continuing to perform Nikah ceremonies which are not registered under the Marriage Act"
"Why are the the MCB and MINAB not making it a requirement that their members operate in accordance with the law ?"

Having asked questions I will then answer the question that I am asked, "Why do I think this issue is important, and why do I continue to speak and write about it ?" The reason is twofold, firstly if Muslim marriages are not being registered under the law then Muslim wives, in particular, are being deprived of their natural rights as British citizens, they are entering into a relationship which they think is a lawful marriage and it is not.

More pertinently the idea that the law is treating Muslim Marriages unfairly is simply not true and it is the sort of untruth which encourages feelings of victimisation and alienation from society which are the breeding ground of radicalism and terrorism.
If you read the comments section in the Times faithOnline Blog there were many who believed Shelinas suggestion that Muslims were being treated unfairly and so a controversy has been created where none should exist. Discrimination in the law is a bad thing and if the law was treating Muslims unfairly then it would need to be changed but where the law is fair and is treating religions properly and with respect then that fact needs to be stated loudly and clearly, Religions have enough real problems in modern society without creating imaginary problems where none exist.

Wednesday, 26 August 2009

Law and Religion Scholars Network

Amongst other organisations and groups I am a member of the Law and Religion Scholars Network run by the Cardiff University 'Centre for Law and Religion'

The Centre is run by Professor Norman Doe with much of the hard graft (as we say in the North) being done by Russell Sandberg. The two of them put in a large amount of work to bring together lawyers and others who are involved in legal and religious matters. In January for example there was a meeting discussing the various types of Courts or Tribunals run by religious organisations including Catholic Annulments, Jewish Beth Dinn and the Muslim Arbitration Tribunal. Papers from the meeting are made available at http://www.law.cf.ac.uk/clr/networks/ilan4.html

The Centre has now set up a Database of cases dealing with religion and law compiled by the Law and Justice case note writing team, led by Frank Cranmer. For each case, a short summary of the decision and a link to the transcript of the case is provided. A fuller case note for most of the cases is published in Law and Justice. Once the full case note has been published in Law and Justice then a reference to the case note will be added to the end of that entry. Judgments are arranged by year. The Case Database currently includes all cases from 2007 onwards, together with some of the most significant earlier cases. It can be found on the LARSN webpages at:

Each list is split into two sections: the first includes cases heard in the United Kingdom, the second features cases heard by the European institutions. The entries are arranged chronologically, with the most recent cases at the top. I do something similar with Case reports at my site www.religionlaw.co.uk but it is always useful to have more than one source covering this subject and the LARSN database includes many cases relevant to the Church of England which I hadn't noticed.

For anyone interested in religion and law this site should be added to your 'favourites'. I can heartily recommend it

Sunday, 2 August 2009

SSPX Church in Manchester

A story which bothers me but seems to have had surprisingly little publicity is the decision of the Church Commissioners , who look after the properties of the Church of England, to refuse to sell a disused Church in Manchester to the Society of St Pius Tenth (SSPX) The refusal seems to me to be nothing more than blatant religious discrimination and therefore illegal under Part 2 of the Equality Act 2006 .

For those who don't know about the SSPX it is a group which split from the Catholic Church following the Second Vatican Council and which continues to use the traditional Latin Mass instead of the new Catholic Mass which is said in the language of the congregation. I accept that a follower of SSPX would say that was a greatly oversimplified view of them and would also say that they had not split from the Catholic Church however this Blog is not the place to go into a debate which to the outsider can resemble arguments about Angels dancing on the heads of pins. The most famous, or infamous
, member of SSPX is Bishop Williamson who expressed doubts about the Holocaust in an interview on Swedish TV.

Now I can understand the motives of those who justify the refusal to sell by reference to the remarks of Bishop Williamson however the point is that Williamson is just one of 4 SSPX Bishops, he is not the superior of the SSPX and his remarks were not supported by his fellow Bishops so therefore it does seem that the entire SSPX is being punished because of the remarks of one person and, in simple terms, that is unjust and unfair.

Besides being unfair on the members of the SSPX, who are being deprived of the opportunity to spend their money on restoring a derelict Church and returning it to Christian worship, the decision creates a dangerous precedent. If Catholics apply to build a new Church will people be able to object because of something the Pope has said, should Mosques be banned because of Osama Bin Laden ? Just exactly where do we as a society stop once we go down the road that the only religions that are allowed to open new places of worship are religions "we" agree with ?

What I found especially hard to stomach was the remark by the Bishop of Manchester, that the sale of the derelict Church to the SSPX would not be in the interests of "ecumenical relations or inter-faith work". The Bishop clearly has a pretty Orwellian view of what Ecumenism and inter-faith work actually means. Whether one likes SSPX or not they are a religious group, a "faith community" in the modern parlance and they are just as entitled to ecumenism and respect as any other "faith community" the Bishop deals with.

The SSPX have been pilloried as being bigoted and intolerant, I am not a member so I cannot comment on the general views of members of the SSPX, but one thing I do know in this particular case it is the SSPX which is the victim of bigotry and intolerance. I also suspect that they have a good legal case should they decide to challenge the Church Commissioners.

Monday, 29 June 2009

Who is a Jew ?

Last week the Court of Appeal issued an extraordinary judgement in the case of E v JFS School [2009] EWCA Civ 626 where it decided that it was better qualified than the Chief Rabbi to decide whether or not a particular youth was jewish. This decision reversed an earlier High Court judgement [2008] EWHC 1535/1536 (Admin).

The essence of the case was that JFS School (formerly the Jewish Free School) is a faith school which selects students who are Jewish and it accepts the decision of the Chief Rabbi as to who is or is not Jewish. E's mother converted to Judaism in a reform synagogue and that conversion is not recognised as valid by the Chief Rabbi who only accepts conversions through Orthodox Synagogues. For this reason E was not accepted by the school as being Jewish because Orthodox Judaism accepts descent through the mother (matrilineal descent) and since E's mother was not accepted as being Jewish neither was he.

This may be regarded as a pretty hard set of rules but it is one which has been applied by Jewdaism for some 3000 years during which period Jews have survived the Pharaohs, Assyrians, Seleucid Greeks, Romans and the Nazis so you would have thought that the Jews had earned the right to decide these questions for themselves well not in modern Britain they're not. The Court of Appeal decided that the policy was "racist" and therefore it must be overturned and they, the Court of Appeal were entitled to overrule the Chief Rabbi and decide that E was in fact Jewish.

I frankly find this decision dangerous, if a religion cannot even decide for itself who its members are then what real freedom do religions have left ? What I find more worrying is that during the High Court case the Counsel for E relied upon the
Nazi Nuremberg Laws in support of her proposition that E should be regarded as Jewish (I am not making this up see paras 286 to 301 of the High Court decision). The question I ask is this if the Court of Appeal is deciding that it can say someone is Jewish even though other Jews do not regard them as such then isn't this similar in principle to what the Nazis were doing ? Under the Nazis "Jews" who were Christians were still regarded as Jews and sent to the concentration camps. The lessons of history are that once the state starts defining who people are we are into dangerous waters indeed.

Sharia Courts

The think tank Civitas has today issued a report regarding Sharia Courts in Britain and I wrote the foreword which is based on the earlier Blog I wrote in February this year on the anniversary of the Archbishop of Canterburys famous (or infamous) speech. The report can be bought but for those too mean to do so you can download a copy courtesy of Civitas, I get paid the same amount (ie nothing) either way.

Anyway it has given me the opportunity to get interviewed by the Guardian and I have also been contacted by Al'Jazeera who seemed slightly shocked to discover that intelligent people (such as myself ahem) live outside London

One point that does crop up frequently in these debates is a comparison with the Jewish Beth Dinn courts and the suggestion that if Sharia Courts were banned then the Beth Dinn would have to be banned also. For those who are interested the Centre for Social Cohesion has published an analysis of the Beth Dinn which can be downloaded as well as a short summary The important point to note are the areas that the Beth Dinn do NOT deal with namely Child care and Criminal law which are areas dealt with by the ordinary Civil Courts. If the Sharia Courts operated with the same restrictions as the Beth Dinn there would be no problem. In addition Rabbis will not perform Marriage Ceremonies unless the marriage is also registered in accordance with the Marriage Act 1949 . Immams and Mosques, by contrast, are performing Nikah (Muslim Marriage) ceremonies which are not being registered under the Marriage Act and this is both illegal (see s75 of the Act) and dangerous because the new wife often does not know that her "marriage" has no legal validity. This is an issue which really does need to be faced up to by the main Muslim organisation the Muslim Council of Britain. Ignoring the issue is unfair to British Muslim women and is depriving them of their rights as British citizens

Monday, 15 June 2009

Magna Carta

Today 15th June 2009 is the 794th anniversary of the signing of Magna Carta by King John. To commemorate is I reproduce below an article I had published in the Times Legal Section July 11th 2000 when lawyers were getting all excited about the coming into force of the Human Rights Act. I think the article is still relevant and true today and so I reproduce it below.
Happy Birthday Magna Carta

"On the 15th July 2000 the American Bar Association will be visiting Runnymede to rededicate its monument to Magna Carta. It is perhaps appropriate that this event is happening in the year in which the Human Rights Act is due to come into force since it may help to put that piece of legislation into some historical perspective.

Magna Carta was signed on 15th June 1215 by King John one of the most famous, or infamous, Kings in English history. The reality is that John was probably a better King than his romantic elder brother Richard the Lionheart who spent his entire reign abroad fighting the Saracens, the French and anybody else who got in his way. King John however was not a 'Lionheart' his nickname was 'Softsword' and within fifteen years of becoming king he had lost Normandy to the King of France, subjected England to a papal interdict and alienated almost all sections of society.

John signed Magna Carta to avoid a Civil War he would undoubtedly have lost. His situation at Runnymede being summed up in a Lancashire poem,

"You'd best sign at once" said Fitzwalter
If you don't I'll tell thee for a start
The next coronation will happen quite soon
And you won't be there to take part"

Mediaeval society relied heavily on charters. Every borough, abbey or manor had its charter setting out its own peculiar rights and privileges which even the King was obliged to respect. At Runnymede this concept was, for the first time, extended to the entire country just at the time that the common law was beginning to be developed. The principles of Magna Carta therefore became an integral part of the common law itself and therefore part of the heritage of America and the Commonwealth.

The separation of powers which is today recognised as an essential part of a democratic society developed in England because of Magna Carta. Articles 12 and 14 provided that no tax (scutage or aid) could be imposed unless agreed to by the 'common counsel' of the realm i.e. Parliament. Articles 17 and 18 provided that courts of justice no longer followed the royal court but were instead held in London or in local assizes held at fixed times of the year and out of this developed professional courts and judiciary. Article 39 confirmed that no-one could be convicted of any offence save by the "judgement of his peers" i.e. trial by jury. ( In the same year as Magna Carta the English church refused to sanction further use of trial by ordeal )

Because of these developments by 1608 Chief Justice Cope was able to tell James 1 that even though he was King he was still subject to "God and the Law " and the 1688 Bill of Rights proclaimed that it was not claiming new rights but was instead affirming 'ancient rights'. In France by contrast Louis XIV was proclaiming " L'etat et moi " and royal autocracy persisted in Germany and Russia until 1918.

Reading Magna Carta today it is easy to dismiss it as merely of historical relevance. References to "Scutage" and "Assizes of darrein presentment" make it appear quaint and irrelevant to the modern age but within it there are phrases which are as relevant today as they were in 1215.

Article 40 "To none will we sell, to none deny right or justice" should perhaps be engraved on the Pugin wallpaper in the Lord Chancellor's office for him to contemplate when considering the level of court fees and the policy of making the courts self financing.
Article 39 "No freeman shall be taken or imprisoned ... save by the lawful judgement of his peers" is the basis of trial by jury which may be regarded by the Home Secretary as little more than an expensive legal technicality but which is regarded across the Atlantic as a fundamental principle of democratic society.

As recently as August 20th 1998 the Canadian Supreme Court in a judgement referred to Magna Carta as part of the constitutional and legal heritage of Canadians. The American Declaration of Independence mentions attempts to restrict jury trial as one of its justifications and in both America and Canada the Magna Carta creation of Trial by Jury is today protected as an absolute constitutional right.

On 1st October 2000 the European Convention on Human Rights is to incorporated into UK law. There is however little point in making a great fanfare about 'new rights' if we do not remember, respect and preserve the rights we already have. We are not a state emerging from Fascism or Communism and having to start from scratch to build a democratic society. We are the descendants of Magna Carta and the inheritors of a long and successful legal tradition which has evolved over 785 years. Human Rights is not some gift England is being given from Europe. Human Rights was England's gift to the world !"

Wednesday, 3 June 2009

Catholic Adoption Agencies lose case

The news that the Catholic Adoption Agencies had lost their their case before the Charity Tribunal is sad but was certainly not unexpected, at least as far as I was concerned.

What the agencies were trying to do was to change their objects so as to add the following

"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"

They argued that this would enable them to operate because of the exemption for Charities under reg 18 of the Sexual Orientation Regulations 2007
which say

"18.—(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if—
(a) he acts in pursuance of a charitable instrument, and
(b) the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument"

From a legal point of view the Tribunals decision seems to me to be very questionable, the Tribunal said (para 21)

"regulation 18 could not be relied upon by the Appellant to permit activity which was no longer permitted, or which was made unlawful, by another regulation. As the Preliminary Ruling made clear, this was because the Tribunal understood regulation 18 to permit discrimination by charities only when their activities did not stray into the areas covered by the other regulations"

Frankly that is a legally fatuous remark and completely circular reasoning since if reg 18 only applies to activities which are not covered by the SOR's anyway then why would any Charity need to rely on reg 18 at all ? Before the comments section of this Blog gets overload I should add at this point that reg 18 is not some sinister " legal loophole" in the SOR's designed by cunning homophobes, it is the standard type of exemption given to Charities in every other area of Discrimination legislation so as to permit Charities(and we are only talking about Charities) to offer specific services to Women/Specific Races/Specific Nationalities/People with specific disabilities etc. If the Charity Tribunal decision stands unchallenged then every other Charity is now subject to every other type of Anti-Discrimination legislation and, incidentally, the commission decision makes it more difficult for there to be specific Charities providing services for Gay and Lesbian people.

However the irony is that even had the Catholic Charities won their case before the Tribunal it would have been a pyrrhic victory. As the Tribunal pointed out local authorities would refuse to deal with an Adoption Agency which was clearly and directly discriminatory in its objects and the Agency in that situation would have had no way to challenge such a refusal by a local authority.

Leaving aside the fact that the potential views of local authorities should have been irrelevant to the decision the Tribunal was supposed to be making which was whether the proposed change in objects was legal or not; the Tribunal was undoubtedly correct in their analysis. That is why I, as Director of the Thomas More Legal Centre have been advising Adoption Agencies for a year that they should amend their objects to read as follows

"The Charity shall not have power to engage in any activity which it knows, or reasonably believes, is contrary to the teaching of the Catholic Church; the formal opinion of the Bishop of [ ] shall be final in any question as to what is the teaching of the Catholic Church”

Such a provision in the objects of the Charity would, of course, have prevented them choosing either same sex, or unmarried heterosexual couples, as adoptive parents and they would have had to concentrate on married couples who according to the teachings of the Church (and millenia of human experience) are the appropriate unit to raise and nurture children. Had a local authority then refused to deal with one of the Catholic Agencies then the local authority would itself have been acting illegally by engaging in Religious Discrimination. Why none of the Catholic Agencies even tried this route I do not know. It certainly could not have been any more unsuccessful than the route they did choose.