G'day Folks

Well good bye until Easter. I'm off to visit Australia and I don't anticipate having the time to update this Blog during that period

Civil Partnerships In Church

The House of Lords is to consider an amendment to the Civil Partnerships Act 2004 which is the Act that permits the formation and registration of same-sex partnerships. Certain sections of the Act (such as s2(5) or s6(1)(b) prevent these Civil Partnerships taking place in Religious premises or with a religious service. The Unitarian Church, the Quakers and Liberal Judaism have all apparently asked for these restrictions to be removed in order that they can preform religious same-sex ceremonies which they have no religious objections to.

Now in principle I cannot disagree with this proposal because clearly if a particular religion has no problems with same-sex relationships then the law should not prevent these religions holding such ceremonies, because allowing something does not normally make it compulsory.

The problem arises from the other parts of the Equality Bill or from the existing Sexual Orientation Regulations. If the Civil Partnerships Act 2004 is amended as Lord Ali proposes then Religious premises will have to justify why they are not hosting Civil Partnerships and will be liable to be sued for "sexual orientation" discrimination. Similarly Local Authorities could refuse to allow churches to be registered for the celebration of marriage unless they also register for Civil Partnerships. In effect therefore Churches and Synagogues could find themselves being prevented from performing the Marriages they have performed for centuries merely because they do not want to perform the Civil Partnership ceremonies which have existed for less than a decade

Lord Alli's amendment needs to include a clause which makes it clear that no Church, Synagogue or Mosque, no Priest, Rabbi or Imam would be obliged to participate in a Civil Partnership. Without such a clause Religious Organisations would eventually find themselves forced to perform Civil Partnerships rather than merely permitted to do so.

A Muslim View on the Hijab debate

Ms Aisha Alvi is a Hijab wearing Muslim Barrister who I am pleased to call a friend and who I respect greatly.

She has published an article on "The Hijab 20 Years on"

I don't necessarily see things entirely the way Aisha does but what she says does need to be thought about because if someone like her feels alienated from British Society then that is worrying

Articles about the Equality Bill and The Pope

In view of the continuing interest in what Pope Benedict said about British Equality Laws I have made a collection of (in my opinion) interesting articles on the subject but first do read The Speech Itself

My comments on this Blog

Jonathan Chaplin guardian.co.uk, Saturday 6 February

Joel Edwards guardian.co.uk, Friday 5 February

Andrew Brown's blog Guardian 3 February

Michael Scott-Joynt guardian.co.uk, Wednesday 3 February

Simon Jenkins guardian.co.uk, Tuesday 2 February

Martin Pendergast guardian.co.uk, Tuesday 2 February

Jonathan Sacks The Times February 3

Rod Liddle The Times February 4

Tim Black Spiked-online 3 February

Simon Sarmiento guardian.co.uk, Wednesday 10 February (about Rowan Williams)

The Tablet 7 February

The Tablet 14 February

Cross with the Court of Appeal

The Court of Appeal has issued its judgment in the case of Eweida v British Airways [2010] EWCA Civ 80 where they said that prohibiting a Christian British Airways worker from wearing a small cross round her neck was not constitute Religious Discrimination.

I hate to jump on the usual "unfair to Christians" line but I do have to say that I find the Court of Appeals decision completely impossible to reconcile with the High Court decision in Sakira Singh [2008] EWHC 1865 (Admin) where it was held that prohibiting a Sikh School girl from wearing a "Kara" bracelet was religious discrimination. What, I ask myself is the difference between a religious cross around the neck and a religious bracelet on the wrist.

In the Eweida case the Court of Appeal attached importance to the fact that the majority of Christians did not regard it as a "requirement" of their faith to wear a cross. Leaving aside the point that this type of distinction is itself discriminatory it is also contrary to the finding sin the Sakira Singh case where the Judge said in para 29
"although the claimant is not obliged by her religion to wear a Kara, it is clearly in her case extremely important indication of her faith"
which is exactly what any Christian would say about wearing a Cross

I am also extremely concerned by para 40 of the Eweida Judgment where Lord Justice Sedley said

"This case has perhaps illustrated some of the problems which can arise when an individual (or equally a group) asserts that a provision, criterion or practice adopted by an employer conflicts with beliefs which they hold but which may not only not be shared but may be opposed by others in the workforce. It is not unthinkable that a blanket ban may sometimes be the only fair solution."

This aspect of the judgment ignores what Baroness Hale said in para 96 of the case of Begum [2006] UKHL 15

" If a woman freely chooses to adopt a way of life for herself, it is not for others, including other women who have chosen differently, to criticise or prevent her. Judge Tulkens, in Sahin v Turkey, at p 46, draws the analogy with freedom of speech. The European Court of Human Rights has never accepted that interference with the right of freedom of expression is justified by the fact that the ideas expressed may offend someone. Likewise, the sight of a woman in full purdah may offend some people, and especially those western feminists who believe that it is a symbol of her oppression, but that could not be a good reason for prohibiting her from wearing it."

I will return to this case again. In many respects the Eweida case has always struck me as something of a storm in a tea cup but this judgment is dangerous and needs to be appealed

Hindu Funeral

Mr Devendar Ghai has won his Court of Appeal case for a Traditional Hindu Cremation Ghai v Newcastle City Council [2010] EWCA Civ 59 having lost the case earlier in the High Court [2009] EWHC 978 (Admin)

Cremation is, of course, legal in Britain but takes place in Crematoria which are enclosed and Mr Ghai wanted to have a Cremation in the open air which, he argued, would set hsi soul free. In fairness to Mr Ghai he was not asking to be allowed to have a cremation in his back garden. He was asking for special sites in the Countryside to be licensed for open air cremation.

Mr Ghai had claimed in the High Court that the present legal restrictions on Cremation breached his rights to freedom of religion under Article 9 of the European Convention on Human Rights but this argument was rejected in the High Court.

Interestingly Mr Ghai did not win in the Court of Appeal on the basis of his Article 9 argument but instead on the basis that what he was asking for was not illegal under the Cremation Act 1902. The Court discussed the meaning of "building" in s2 of the Act which is the sort of legal argument which has lawyers eyes lighting up and everyone else's eyes glazing over. In short the Court decided that a "building" for the purposes of Cremation did not have to have a roof on it and since Mr Ghai had already accepted that he was quite happy for the cremation to take place in an enclosed area provided that it was open to the sky the Court decided that what he was asking for would constitute a "building" for the purposes of the 1902 Act and was therefore already legal. On that basis the Court did not have to decide the Article 9 point

A bit of legal sleight of hand perhaps but a sensible decision which gives Mr Ghai the open air cremation he wants but respects the Cremation Act. I imagine there will eventually be a number of such open air cremation buildings dotted around the country wherever there is a significant number of Hindus or Sikhs, in fact who knows perhaps Non Hindus and Sikhs will be interested also.

Mr Ghai did mention that he wanted his open air cremation to take place in Northumberland which is an area I know well and I am tempted to wonder how practical open cremation will be in the Northumberland weather but that is a problem for others to work out. I am pleased for Mr Ghai because he wasn't asking for anything unreasonable, ultimately we all have to die and how one is dealt with after death is a very personal and highly cultural matter. I hope Mr Ghai has many happy years before he faces the open air cremation he wants.

The Equality Bill and The Pope

The Pope has aroused some controversy to say the least over his comments about British Equality legislation. He has been accused of interfering in internal British Politics however in view of the fact that the British Government lectures other countries on their attitudes to Gay Rights clearly we cannot complain about "foreign" interference in our country.

As for my view on the entire subject well try to imagine the following conversation

“Well Nick you certainly have all the qualifications and experience that we require to work as a Media advisor to the Labour Party. However because of the nature of the job and the fact that you will be working closely with Labour MP's I would like to ask you some questions. Are you a member of the Labour Party ?”

“Frankly Harriet I don't see how that question is relevant to my ability and qualifications to do the job.”

“Well you see Nick because of the type of organisation we are we need to know that all our staff comply with our values and principles so I must ask you once again are you a member of the Labour Party ?”

“Since you ask I am a member of the BNP but that won't affect my ability to do this job. My membership of the BNP is a purely personal matter”

“I'm sorry Nick but if you are a practicing member of the BNP then you simply cannot be employed by the Labour Party"

"That Harriet is nothing more than prejudice and Discrimination. I will sue you in an employment Tribunal"

If the above conversation was to ever take place "Nick" would find himself with a problem because it is perfectly legal to discriminate on the grounds of political belief or party membership and the Equality Bill does not change this. No Labour politician would accept the suggestion that the Labour Party or a Labour MP should be obliged to employ a member of the BNP but by the same logic why should a Church or Mosque be obliged to employ someone whose views and life style are incompatible with the views and ethos of their organisation ? Religions are often being accused of hypocrisy but in this case it is politicians who are the hypocritically applying to religious organisations principles that they do not apply to themselves.

When the Pope made his speech questioning the governments current equality obsession those criticising him concentrated on the issue of discrimination but have ignored the fundamental point he was trying to make namely that Britain proclaims itself to be a free society but is increasingly unwilling to accept that an important element of a free society is accepting that voluntary organisations, such as churches, have the right to preserve their character and identity both in their membership criteria and in their employment practices.

The press have covered the Equality Bill as if the only objections to it related to homosexuality but the objections are much more fundamental than that. Under the proposals in the Bill religious organisations will not be able to insist on employing members of their own religion even in quite important positions and that is a fundamental attack on the principles of freedom of Association. Organisations, whether religious or otherwise, are ways in which human beings interact with one another and with society at large and organisations as much as individuals have a right to their own character and identity.

The defenders of the Equality Bill argue that it does not interfere with Freedom of Association because employment by an organisation is different to membership of it but is that distinction really valid ? In reality how far can any organisation flourish if the lives of its employees are in fundamental conflict with the principles of the employer ?

For example should the RSPCA be obliged to employee someone who goes fox hunting on their day off, the argument could be made that is it is their private life so why should their employer object ? The reality is of course that if such an employee was working for the RSPCA then the RSPCA would be accused of hypocrisy in employing them and members would probably not be happy to see their membership subscriptions being used to pay the salary of such a person. On the same basis if a Church or Religious Charity employs someone whose personal life is incompatible with the principles of the religion then they will be accused of hypocrisy also.

The Pope was not asking for Churches to be given for special privileges or exemptions rather he was asking that the law be framed in a way that recognises there are different types of organisations in society and for politicians to draft laws that are realistic, just and proportionate in their effect. In reality it is the Pope who is defending tolerance and diversity not Harriet Harman

Muslim Marriages (4)

I have just come off the phone having participated in a debate on the BBC Asian Network about Muslim Marriages in England.

The point I made is the same one I have been making in this Blog for some time now namely that there are no legal problems preventing Muslim Marriages being registered under English Law all that needs to happen is for the Mosque to register under the Marriage Act 1949

See previous Blogs
September 2009
June 2009
Feb 2009