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.