Friday, 30 April 2010

What is Religious Discrimination ?

I am going away for a few days and so cannot properly comment on the case of McFarlane v Relate BAILII: [2010] EWCA Civ B1 which has dealt with some quite fundamental questions relating to the nature of Religious Discrimination under the Employment Equality (Religion and Belief) Regulations 2003.

I was not surprised that the suggestion by Lord Carey that religious cases involving Christians should be dealt with by specialist Judges got nowhere but I also felt he did have a point that Courts seem to be applying double standards in how they deal with issues of alleged discrimination involving Christians and discrimination involving members of other religions. In addition they seem to be ignoring the basic principles of proportionality and balance which are (or should be )fundamental to the principles of anti-discrimination legislation.

The decision in the McFarlane case was based very largely on the earlier Court of Appeal decision in Ladelle v London Borough of Islington [2009] EWCA Civ 1357. Both the Court of Appeal and the Employment Appeal Tribunal had rejected the the decision of the original Employment Tribunal which had decided that Miss Ladelle had been discriminated against but I do feel that the original Tribunal had understood the issue better than the EAT or Court of Appeal when it said

"This is a case where there is a direct conflict between the legislative protection afforded to religion and belief and the legislative protection afforded to sexual orientation .... One set of rights cannot overrule the other set of rights"

That common sense and balanced view is clearly not the view of the Court of Appeal and Lawyers dealing with religious discrimination cases are going to have to reconsider their tactics accordingly

Wednesday, 28 April 2010

What Have the Polar Bears Ever Done for Us - Part 2

Back in December in the case of Grainger Plc v Nicholson BAILII: [2009] UKEAT 0219_09_0311 the Employment Appeals Tribunal decided that belief in Man Made Climate Change could classify as a "philosophical belief" for the purpose of the Employment Equality (Religion or Belief) Regulations 2003

At the time I blogged that I was looking forward to reading the judgment once the case went before an Employment Tribunal because I thought Mr Nicholson would have difficulty winning his case on the facts.

Anyway I have now been deprived of that pleasure since Mr Nicholson has apparently settled his case before the Tribunal case was heard. According to the BBC the company decided it was cheaper to settle rather than spend their money on a ten day Tribunal case. Sad really because I think they would have won

Tuesday, 13 April 2010

Italian Crucifix Case - Judgement now in

In the case of Lautsi v Italy the European Court of Human Rights ordered the Italian Government to remove Crucifixes from all State Schools.

I have already Blogged on this case on the 5th November 2009 and 7th November 2009 but the full judgement was not available in English at the time. The Judgment is now available from the ECHR and can be downloaded HERE

Having read the full judgment I stand by what I said earlier based on the summary provided by the ECHR however for those commentators who have always maintained that Crucifixes are in Italian Schools only because of Mussolini (Boo Hiss) I do recommend that they read para 16 of the Judgment

'The obligation to display crucifixes in classrooms pre-dates the unification of Italy. Article 140 of the Kingdom of Piedmont-Sardinia's Royal Decree no. 4336 of 15 September 1860 required “each school without fail [to] be equipped ... with a crucifix”'

The Italian Government is currently appealing the Judgment to the full Court and is likely to be supported by several other European governments

Friday, 9 April 2010

Put the pope in the dock ?

Now I'm not a QC (a "senior" lawyer for my non British audience) but I am a lawyer and I do recognise a rubbish legal argument when I see one which was certainly the case in a recent article in The Guardian Newspaper by Geoffrey Robertson QC called "Put the Pope in the Dock"

The Article suggested that the status of the Vatican State "as a state" was bogus and could be challenged in the UK Courts and the European Court of Human Rights and in addition that Pope Benedict could be tried by the International Criminal Court for "Crimes against humanity" involving the Sex abuse scandal by some Catholic Priests

It's difficult to know where to start in the legal inaccuracies in Geoffrey Robinsons article but the following comment certainly takes the legal biscuit.

" the Vatican was created by fascist Italy in 1929 when Mussolini endowed this tiny enclave – 0.17 of a square mile containing 900 Catholic bureaucrats – with "sovereignty in the international field ... in conformity with its traditions and the exigencies of its mission in the world". The notion that statehood can be created by another country's unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage."

Well with all due respect to Geoffrey Robinson
Sovereignty and Statehood is a matter of fact in International law and whether it is created unilaterally or multilaterally is irrelevant, all that matters is whether independent statehood is recognised by other independent states. Whether Geoffrey Robinson likes it or not the independence of the Vatican State and of the Holy See is recognised diplomatically by a majority of countries including the UK, the USA, all the member countries of the European Union and members of the Council of Europe. The Holy See Issues passports which are recognised internationally and during the Second World War the Italian Government recognised the Neutrality of the Vatican and did not interfere with the Holy Sees' contact with Governments with which Italy was at war. Similarly when Germany occupied Rome after the fall of Mussolini it did not occupy the Vatican and neither did the Allies when they entered Rome.

The legal status of the Vatican as an independent state may be regarded by some as ridiculous and it can be described as anomalous but it is nevertheless a legal fact and it is frankly fatuous for a lawyer to suggest otherwise, but the article goes further

"This claim [that the Vatican is a State] could be challenged successfully in the UK and in the European Court of Human Rights"

Now I realise that many Human Rights lawyers grant to the European Court of Human Rights a degree of infallibility that even the most Papist minded Catholic would consider excessive but the European Court of Human Rights can only act within the limits of its own jurisdiction and it has absolutely no power to determine whether the Vatican is or is not a state it only has jurisdiction to determine whether the European Convention on Human Rights has or has not been breached by the member states of the Council of Europe.

Nowhere in the Convention is there any suggestion that the Court has jurisdiction to decide on whether or not a state exists and to propose that the ECHR should make such a determination is to suggest that a Court should act illegally by exceeding its own powers and its own lawful jurisdiction. Similarly the UK Courts have made it clear on more than one occasion that it is up to the UK Government to decide whether or not a State is granted Diplomatic recognition. Since the UK Government recognises the statehood of the Holy See and the Vatican that is the end of the matter so far as the UK Courts are concerned.

Finally Geoffrey Robinson suggests that the Pope personally could be brought before the International Criminal Court for unspecified Crimes. The ICC came into being on 1 July 2002 when the "Rome Statute" was brought into force and it can only prosecute crimes committed on or after that date so any allegations prior to that date are irrelevant so far as the ICC is concerned. In addition the ICC has jurisdiction over the crimes of "genocide", "crimes against humanity", "war crimes", and "the crime of aggression" and I am assuming that not even Geoffrey Robinson is accusing the Pope of Genocide, War Crimes or International Aggression. To the best of my knowledge the Swiss Guard have not launched an invasion of any country recently so that leaves us with the possibility of a prosecution for "Crimes Against Humanity"

Article 7 of the Rome Statute defines "Crimes against Humanity" as follows (my emphasis)
"For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Even the worst facts, or exaggerations, regarding sex abuse by Catholic Priests would find it difficult to define it as a "widespread or systematic attack directed against any civilian population," and to attempt to try to bring such acts within the definition of "crimes against humanity" demeans the entire concept of such crimes

Normally I wouldn't comment on an article or Blog written by another person because, at the end of the day, we are all entitled to our own opinion but when a Lawyer writes an article or Blog and invokes the law then people are entitled to assume that they are quoting the law accurately not just engaging in personal prejudice and polemic masquerading as legal fact.

Wednesday, 7 April 2010

NHS Crucifix Worrying for Sikhs and Muslims ?

At present I only have the Newspaper reports about the case of Shirley Chaplin.

Daily Mail
The Guardian
The Telegraph
The Independent

She is a Nurse in the NHS nurse in Exeter who has lost a claim for religious discrimination when she was told to remove a Crucifix which she has worn for 30 years. The reason apparently was fears about "Health and Safety" even though she has never had any problem in 30 years however Health and Safety, Human Rights and Data Protection are the 3 standard excuses all public bodies hide behind thse days in order to excuse stupid decisions.

There are a number of points which I find worrying in the case but the main one is the reported comment that the judgement includes the comment that

"there is no mandatory requirement of the Christian faith that a Christian should wear a crucifix"

This is of course correct but it is also irrelevant because if a member of one religion is permitted to wear "religious jewellery" then it is surely discriminatory to apply different rules to the "religious jewellery" of another religion on the basis of a difference in theology. In addition in the case of Sakira Singh the High Court accepted that religious jewellery (in that case a Kara) did not need to be "mandatory" it merely needed to be an important symbol of faith which surely applies to the cross.

What worries me about this case and the similar case of Nadia Eweida is that in both cases a perception is given that the wearing of the Cross by Christians should be treated less favourably than the wearing of the Sikh Kara or the Muslim Hijab. That is I feel unfair on Sikhs and Muslims who want to preserve their right to wear their own symbols but who do not want to prevent Christians wearing their own symbols. I have not come across a single Sikh who would consider that Sikhs should be permitted to wear the Kara in a situation where a Christian is not allowed to wear the cross and I worry that cases like this harm inter community relations and are in fact unfair on Sikhs and Muslims by making it look as if they are being given (and are seeking) unfair privileges.

I would like to see Sikh and Muslim organisations condemn this Tribunal decision and possibly come in as intervenors in the Appeal. This case, and cases like it, are fuelling feelings of discrimination and unfair treatment amongst Christians and those who may not be religious but who regard Christianity as their "cultural" religion. Such feelings are dangerous and can be used by extremists to ensure that Sikhs and Muslims are criticised for a decision which is not their fault and does not reflect their own views