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 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.