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 !)