Thursday, 24 November 2011

Is Polygamy a "Human Right" ? - Part 2

Back in 2009 I blogged about a pending Canadian case concerning the possible legalisation of Polygamy in Canada. The decision has now been released by the Supreme Court of British Columbia in the form of Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 which is an incredibly long judgment that is difficult to summarise.

In short however the Court has decided that the provisions in s293 of the Criminal Code of Canada which makes Polygamy a crime is legally valid under the provisions of the Canadian Charter of Rights and Fundamental Freedoms even where the individuals concerned are all adults and voluntarily enter into their Polygamous relationship. Part of the Judges reasoning justifying the law is the defence of "monogamous marriage" as historically understood in the West

[1332] The positive side of the prohibition which I have discussed - the preservation of monogamous marriage - similarly represents a pressing and substantial objective for all of the reasons that have seen the ascendance of monogamous marriage as a norm in the West.
[1350] But, in my view, the salutary effects of the prohibition far outweigh the deleterious. The law seeks to advance the institution of monogamous marriage, a fundamental value in Western society from the earliest of times.

Now as it happens I agree with the logic of these remarks however they do seem to me to ignore the fact that the "norm" in the west "from the earliest of times" has been monogamous "heterosexual" marriage and yet it was the Canadian Courts which in Barbeau v. British Columbia, 2003 and Halpern v Canada 2003 overturned the notion of heterosexual marriage on the basis it was "discriminatory". I utterly fail to understand the logic of saying that same sex marriage is a Human Right but Polygamous Marriage is unlawful and harmful to society.

As one (non Ploygamous) Mormon wife is reported as saying
"We're in the 21st century, you know, we have marriages of every kind," she said. "To say that I can choose to be gay, I can choose to be a swinger, I can choose to be whatever I want to be but I can't choose to be in a relationship with more women and one man, I think it's unrealistic."

Normally I disagree in principle with anyone who begins a remark with the words "We're in the 21st Century" however in this case I will make an exception and agree with what she says. It seems to me that Courts and Politicians either accept monogamous heterosexual marriage as the historic societal norm of the west or they permit and recognise all forms of voluntary unions as having equal validity. To do otherwise as the Supreme Court of British Columbia has done has no validity in logic.

The judgment also says
[1262] Any differential treatment that flows from s. 293 is not based on stereotypes with respect to particular marital forms (or, for that matter, particular religions). As I have discussed at length, polygamy has been condemned throughout history because of the harms consistently associated with its practice.
It seems to me that you could replace the word [Polygamy] in that paragraph with the words [homosexuality] and it would be equally logical and valid or illogical and invalid depending on your own personal views . In addition the entire judgment is littered with stereotypes.

Perhaps the opponents of Same Sex marriage in Britain instead of merely opposing government proposals should instead say "why not Polygamy also ?" and ask that the two issues be considered together. Now that would be logical which is more than can be said about Canadian law at present.

Thursday, 10 November 2011

Catholic Bishops and Vicarious Liability for Priests

A recent case JGE v The English Province of Our Lady of Charity & Portsmouth Roman Catholic Diocesan Trust [2011] EWHC 2871 (QB) has aroused a lot of comment with the suggestion in various quarters that it has meant that Catholic Priests are now regarded as employees in law.

Personally I think it is rather less exciting than that and is not really that surprising.

What the case involved is an allegation, and it is important to remember that at present nothing has been proved, that the Claimant was sexually abused by a Priest between 1970 - 72. The Priest alleged to have done this is now dead and so could not be sued nor could he defend himself. The question for the High Court was whether the Diocesan Trust (in effect the Diocesan Bishop) could be vicariously liable for the acts of this Priest, assuming that the Claimant could prove her allegations. Normally Vicarious Liability applies to employers being liable for the acts of their employees but historically Catholic Priests have not been regarded in law as being employees of their Bishop instead they have been regarded as an "office holder". One of the important points about them not being employees is that a Priest cannot sue for unfair dismissal if he is removed from his Parish or is laicised (defrocked) under Canon Law.

The possibility of Priests being held to be Employees has been increasing over the years. In Percy v. Church of Scotland [2005] UKHL 73 the House of Lords held that a Minister of the Church of Scotland was in fact an employee not an office holder and so could sue on the grounds of unfair dismissal and sex discrimination. Similarly in the case of New Testament Church of God v Stewart [2007] EWCA Civ 1004 a contract of employment existed between an Evangelical Free Church and its Pastor. One of the differences between these case and that of a Catholic, or Orthodox Priest is that in Catholic and Orthodox Theology a Priest has specific sacramental powers and functions which only an ordained Priest can validly exercise. This is not the case in classic Protestant Theology hence the difference between the Church of Scotland Minister as an employee and the Catholic Priest as an office holder. (NB I appreciate I am oversimplifying the Theology but this is a legal Blog not a theological one)

In th JGE case the Judge accepted that Catholic Priests were office holders rather than being employees however he also accepted that notwithstanding the absence of an employee relationship it was still appropriate to hold the Bishop vicariously liable. This is because the concept of Vicarious liability has been enlarging in the UK and other Common law jurisdictions for a number of years. Prior to 2001 in general terms employers were only liable for acts of their employees that had been authorised and not for acts where the employee was, in the classic Victorian phrase "off on a frolic of his own". However in the case of Lister v Hesley Hall [2001] UKHL 22 the House of Lords accepted that a Boarding School (NB a secular school) could be liable for child abuse committed by one of its employees even though the acts of sex abuse were clearly well outside any acts authorised by the employer.

The test set by the House of Lords was whether it was, on the facts, "fair and just" to hold the School vicariously liable and the answer given was yes. In effect a similar question was asked in this case and once again the answer was yes. The Priest was not an employee of the Bishop but nevertheless it was right to hold the Bishop liable. The core principles are set out in paras 35-36 of the judgment

35 I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused.

36 Why, one may ask, does it matter that some of the features of a classic contract of employment do not apply here? What is the relevance to the concept of vicarious liability, for example, of the lack of a formal agreement with terms and conditions; or of the manner of remuneration; or of the understanding that the relationship was not subject to adjudication by the secular courts? Those features may have relevance in a different context, but not to the question of whether, in justice, the Defendants should be responsible for the tortious acts of the man appointed and authorised by them to act on their behalf.

The decision is, as I have stated, not that surprising and had it been different and had the Court decided that Catholic Dioceses were not liable for abuse carried out by Catholic Priests then I suspect there would have been a demand for legislation which might have put Dioceses in an even more difficult legal position. As it is the case is clear that Priests are not employees in law which I suspect was the main point the Church was concerned about.

The case against the Diocese can therefore proceed but I do want to say as a lawyer that I am increasingly concerned by the Justice, or injustice, of Claimants being allowed to bring claims alleging acts decades ago by people who are now dead and unable to defend themselves. That seems to me to go against every principle of Natural Justice and ultimately will bring the law into disrepute.

Thursday, 15 September 2011

Put the Pope in the Dock - 2

A case has apparently been filed at the International Criminal Court alleging that the Pope and several Senior Cardinals are guilty of "Crimes Against Humanity"

As far as I can see this is simply a meaningless publicity stunt which frankly does nothing more than to drag the concept of "crimes against humanity" into disrepute. However for those who might want to explore the legalities I blogged about the subject last year as follows

Monday, 26 July 2010 A World-wide Criminal Conspiracy ?

Friday, 9 April 2010 Put the pope in the dock ?

Monday, 5 July 2010 Doe v Holy See - Not as Important as it appears

No doubt it can, and will, be said that in considering this subject I "
parse and analyze it with the gimlet eye of a canon lawyer." to quote Irish Taoiseach Enda Kenny however those who invoke the law in making allegations can hardly object if their allegations are refuted by reference to the law.

As I said last year

Q; Is the Church, the Vatican or the Pope above the law ?

A; No All three are answerable to National or International law. However just as they are not above the Law they should not be treated as below the law or not deserving of the normal rules and protections of the law. Therefore critics who accuse the Church, the Pope or the Vatican of crimes should have to justify their criticisms by applying normal legal rules

Sunday, 11 September 2011

The Equality and Human Rights Commission are engaged in a consultation exercise concerning 4 Religious Freedom cases currently before the European Court of Human Rights. Below is the submission I made to the Commission


1) It is difficult to understand why the Commission had chosen to intervene in these
cases at this late stage when the only legal issues that can be considered are
Articles 9 and 14 of the European Convention on Human Rights. All 4 cases were heavily publicised in Britain as they were occurring and the Commission therefore must have been aware of them, must have known that the issues raised were of general concern and knew that it had the opportunity to intervene if it chose to do so. Commission intervention whilst the cases were proceeding through the British
Courts would have seemed more sensible and appropriate than intervening at this
late stage in the cases

2) Besides the inevitable problems of legal uncertainty caused by delay there is the
specific problem that by waiting until the cases have reached the European Court of
Human Rights means that only one part of the issues raised in these cases is being
addressed by the Commission. In the UK Court hearings Articles 9 and 14 were
being considered under the provisions of the Human Rights Act 1998, and in
addition the Religious Discrimination provisions of the Employment Equality
(Religion or Belief) Regulations 2003 ( now codified in the Equality Act 2010 ) were
also being considered.

3) A major problem in the area of Religious Discrimination law is the issue of indirect discrimination through the application of ostensibly neutral working practices and whether these are a “proportionate means of achieving a legitimate aim” (reg 3, Act s19). The issue of “proportionality” was a crucial point in all 4 cases when they were before the UK Courts and it is difficult to understand why the Commission did
not intervene when the cases, in particular Ladelle were still at the UK level and
when the Commission could have made representations on the Discrimination test
of “proportionality” as well as the Article 9 test of “necessity”


4) This submission makes the general point that Article 9 gives an absolute right
“either alone or in community with others and in public or private, to manifest
religion or belief, in worship, teaching, practice and observance.”
This absolute right is subject only to the restrictions laid down in Article 9.2
“such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Therefore any restrictions which are not “necessary” are not lawful and “necessary”
means more than merely “desirable”. It is clear from the cases before the
European Court that the UK Courts have not been applying the principles of 9.2
correctly in particular they have not ensured that any limitations are objectively
“necessary” as opposed to merely considered by the employers to be desirable

5) In addition the UK Courts have not been correctly applying the legal test required by 9.2 but have instead applied a much lighter and vaguer test devised by themselves. In the case of Begum v. Denbigh High School [2006] UKHL 15, which dealt with the case of a Muslim Schoolgirl wanting to wear a Jilbab at school Lord Hoffman said in para 50
“Article 9 does not require that one should be allowed to manifest one's religion at
any time and place of one's own choosing.”
And this principle was subsequently quoted and applied by the Court of Appeal in
para 54 of the judgment in the case of Ladelle which is before the European Court.
It is worth noting that the words of Lord Hoffman with regard to the application of
Article 9 were also applied in the cases of Playfoot v Millais School [2007] EWHC
1698 (Admin), (para 21), Johns v Derby City Council [2011] EWHC 375 (Admin)
(para 79) and the Northern Ireland case of West [2006] NIQB 39 (para 11)

6) This test created by Lord Hoffman and subsequently applied by the UK Courts is an incorrect approach to Article 9. Under Article 9.1 everyone has an absolute right to
manifest their religion at a time and place of their own choosing unless the specific
form of manifestation is prohibited by “limitations prescribed by law and necessary
in a democratic society” The test being applied by the UK Courts to the
manifestation of religion is therefore ignoring and short circuiting the specific and
carefully laid down limitations authorised by Article 9.2. For that reason alone the
decisions in question in this application to the European Court are suspect.

7) In addition in the cases of Ladelle, Eweida and Chaplin the UK courts have entered into areas of Theological speculation which are inappropriate areas for
determination by Secular Courts. This point will be dealt with in more detail below


8) It is to be welcomed that the Commission is to support these cases and is to defend the right of Christians to wear religious symbols. Whilst the wearing or display of a Cross is not a requirement of the Christian faith the wearing of items such a Cross or Crucifix, is a long established practice in all mainstream Christian denominations. Whilst there are differences in emphasis and practice between various strands of Christianity as to the importance, and indeed the acceptability, of religious symbols and pictures respect for the Cross is universal

9) In these two cases however the Courts UK applied a test of whether the wearing of
the Cross was a “requirement” of the Christian religion and then rejected the claims
in part because it was not. There is nothing in Article 9 or in the case law of the
European Court to justify such a distinction being made. The wearing of a religious
item of clothing, such as a Cross, a Sikh Turban or Kara Bracelet, a Jewish
Yarmulka or Muslim Hijab are all “manifestations” of Religion and as such their
wearing is protected under Article 9 unless one of the limitations set out in 9.2 can
be applied. The fact that in applying Article 9 the UK Courts have sought to
distinguish between religions which have mandatory clothing rules and those which do not is itself a breach of Article 14 in that it discriminates between members of
different religions on the basis of the doctrines and Theology of those religions.

10) In both these cases the UK Courts have found against manifestations of religion by Christians wearing a Cross or Crucifix however the UK Courts have at the same
time protected the wearing of the Sikh Kara Bracelet and the Sikh Turban Watkins-
Singh v Aberdare Girls' High School [2008] EWHC 1865 (Admin) and Mandla v
Dowell Lee [1983] 2 AC 548. The difference between the way UK Courts have
treated the wearing of the religious symbols of the Sikh Religion and the wearing of
religious symbols of the Christian religion is striking and a prima facie breach of
Article 14. For the Avoidance of doubt I do not in any way object to or disagree with the decisions of the UK Courts in these two cases and the supports the right of Sikhs to manifest their religion by wearing these items. It is suggested that the attitude and principles used by the UK Courts in deciding these two cases should also be applied to Christians wishing to wear a cross which is a vital Christian symbol the wearing of which is of long standing.


11) The Commission has said that it will oppose the appeals in the cases of McFarlane and Ladelle and clearly considers that the issues in the two cases are the same. I disagree and suggest that the two cases are clearly distinguishable on their facts and in the legal principles applicable to them. This submission will concentrate solely on the case of Ladelle which we would suggest shows an inability on the part of the Courts, and the Commission, to distinguish between simple discrimination and refusal to be complicit in an immoral act. In addition the case demonstrated an unwillingness on the part of the UK Courts to properly consider or apply the limitations in Article 9.2 in particular the question whether the limitations were “necessary in a Democratic Society”

12) In respect of her desire not to participate in same sex partnership ceremonies Ms
Ladelle was manifesting her religion and belief in “practice and observance”. Since
she believed that same sex relationships are sinful she was aware that by
participating in them she would herself be morally complicit in that sin and therefore any attempt to force her to participate in them was contrary to her rights under Article 9 because it was an attempt to force her to act in a way that was inconsistent with her moral beliefs. Her objections should only have been overridden if that was “necessary in a democratic society”

13) In para 56 of its judgment the Court of Appeal said
“Ms Ladele's objection was based on her view of marriage, which was not a
core part of her religion; and Islington's requirement in no way prevented her
from worshipping as she wished. “
and this section shows a fundamental misunderstanding of Christian belief on
marriage, or Article 9 and of the proper role of the Courts. It is not for Secular
Courts to distinguish what is or is not a “core part” of a religion and Article 9 is
concerned with freedom of religion not freedom of worship. Like all elements of the
Convention Article 9 protects both positive and negative freedom. To force
someone to act in a way contrary to their religious beliefs is as bad as preventing
someone acting, or worshipping in accordance with their religious beliefs but that is
what Islington Council and the Court of Appeal .required of Ms Ladelle

14) In Ms Ladelles case there is absolutely no evidence that it was “necessary” to make her participate in same sex ceremonies. The evidence in the case showed that the service provided by Islington was not in any way affected by Ms Ladelle ensuring
that she was not rostered for same sex ceremonies therefore requiring her to
participate was not “necessary” in any meaningful sense of the word. The fact that
her views may have been contrary to the Equality policy of the Council, which is
arguable both ways, still does not make it “necessary” to force her to act in a
manner which was contrary to her religious beliefs. The issue of whether the
Councils actions were “necessary” was never properly addressed by the Court


15) The Commission has asked for views regarding whether the law should be changed to explicitly require “reasonable accommodation” in cases of religious
discrimination. Whilst such a change may be desirable there are understandable
objections to making a change which might appear to be privileging claims of Religious Discrimination over other forms of discrimination. For that reason either
the change should be applied to all forms of discrimination or the change should not
be made.

16) It is in any event questionable how necessary the proposed change is and whether the problem is not that the wording of the law is inadequate so much as that the Courts have not been applying the law correctly. The law, as already outlined
above, requires that a “provision criterion or practice” must be a “proportionate”
means of achieving a legitimate aim. In addition as already discussed Article 9.2
requires that any limitation on Religious Freedom must be “necessary”. What has gone wrong in the various religious freedom cases that have concerned Christians is that the Courts have taken an unduly restrictive view of what is “proportionate” or “necessary” and have not engaged in any real balancing exercise when different rights are in conflict. The best way of dealing with this may be for the Commission to issue guidance under s14 Equality Act 2006 making it clear that Employers must ensure that their requirements are “proportionate” and “necessary” and also making the point that where different rights are in conflict no particular set of rights can take precedence.

Friday, 12 August 2011

Abortion and the Equality Act

Wearing my (unpaid) hat of Director of the Thomas More Legal Centre I have recently successfully represented two Roman Catholic Nurses who were told that they could not refuse to work at a weekly Abortion Clinic run by their Hospital. In doing this I relied on what is, I believe, a new use of the Religion and Belief provisions in the Equality Act 2010

The two nurses were employed at the Hospital for ordinary Nursing duties and were then allocated to work once a week at an Abortion Clinic in the Hospital. The Abortion process did not involve surgical abortion but the increasingly common process of "early medical abortion" (EMA) involving the termination of pregnancy, by means of a combination of drugs rather than surgery. where women are issued with the drug Mifepristone followed some days later by administration of the drug misoprostol which then causes an induced miscarriage. (See para 10 of judgement in
When they became aware that they were participating in Abortion they told their management that they did not want to continue but where then told that they had no choice in the matter. One Manager in fact commented "What would happen if we allowed all the Christian Nurses to refuse". Following this the nurses approached the Hospitals Catholic Chaplain who contacted the Thomas More Legal Centre.

From the facts it was clear that the Hospital had not recognised or accepted that the Nurses had a legal right to refuse to participate. EMA has been held by the High Court, in the BPAS case mentioned, to be an Abortion procedure under the Abortion Act 1967 and as such the Nurses had an absolute right to refuse to participate under the conscientious objection provisions of s4 of the Abortion Act.

Abortion Act 1967 - 4. Conscientious objection to participation in treatment
(1) Subject to sub-section (2) of this section, no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection
TMLC wrote to the hospital stating that the Nurses were refusing to work in the Clinic and quoting their rights under s4 Abortion Act. The letter also stated that their belief in the sanctity of life from conception onwards was a philosophical belief protected under the Equality Act and therefore any attempt to pressure them into participating in the Abortion Clinic or to suggest that their refusal would affect their career would be illegal under the Equality Act 2010.

This particular interpretation of the Equality Act has never, to my knowledge, been argued before however since the Courts have accepted that the philosophical belief in Global warming is protected under Equality legislation, see Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 I could see no reason why belief that human life begins at conception should not be equally protected.

The reason for including the Equality Act in the letters to the Hospital was in order to provide the Nurses with additional protections. Section 4 of the Abortion Act though it is clear does not provide any enforcement mechanism and also does not protect a conscientious objector from being pressurised to participate in Abortion, held back in their career due to their pro-life belief or indeed not employed in the first place. However using the Equality Act as well as s4 of the Abortion Act meant that the Nurses would be able to claim Harassment, Victimisation or Discrimination in an Employment Tribunal if they were put under pressure at work because of their reliance on the conscientious objection protection in s4.

The Hospital attempted to tell the Nurses that they could be excused from actually administering the Abortion inducing drugs but would otherwise have to work in the Clinic. TMLC again wrote making it clear that this proposal was unacceptable because the nurses would still be morally complicit in Abortion if they worked as nurses in the Abortion Clinic even if they did not actually administer the pills and again relying on s4 and the Equality Act. The Hospital eventually backed down and the nurses were allocated to other duties.

Besides using Equality Act argument on behalf of these pro-life nurses I have advanced the same argument in another case where TMLC have issued an Employment Tribunal claim on behalf of another NHS worker. The lawyers for the NHS have accepted in their defence that belief in the sanctity of unborn life is a philosophical belief which is protected under the Equality Act.

Personally I hope that this use of the Equality Act will be of assistance for pro-life Doctors and Nurses and Pharmacists who find themselves being pressurised to participate in Abortion in particular these new forms of Abortion induced through pills. Now they are not only are protected under s4 of the Abortion Act but they are also protected from Harassment, Victimisation or Discrimination because of their pro-life stand.

Incidentally I am not naming the nurses or their Hospital at the specific request of the Nurses themselves. After all not everyone wants to become a media personality!

Wednesday, 27 July 2011

Jivraj v Hashmi - Religious Arbitration

The Supreme Court in Jivraj v Hashwani [2011] UKSC 40 has unanimously held that an Arbitrator is not an employee for the purposes of the Equality Act.

The case involved a contract between two Ismailis which had an arbitration clause requiring any dispute to be resolved by “respected members of the Ismaili community” When a dispute eventually arose one of the parties claimed that this requirement was unlawful under the Employment Equality (Religion or Belief) Regulations 2003, now incorporated within the Equality Act 2010

The Court relied on the European Court decision Allonby v Accrington and Rossendale College in deciding that an Arbitrator does not work under the direction of the parties and is in the category of an independent provider of services

Though it was not directly relevant to its decision the Court also went on to consider whether the appointment of a religious arbitrator could be considered to be a Genuine Occupational Requirement and held that because there was a long tradition and an ethos for resolution of disputes within the Ismaili community itself and a stipulation that an arbitrator be of a particular religion or belief can be relevant to the manner in which disputes are resolved it was a GOR for the purposes of the regulations, and hence the Act. The Court did however state that the decision whether any post should be covered by the GOR exemption had to be made by and objective analysis of the evidence.

The decision will undoubtedly be a relief to Muslim Arbitration Tribunals and Jewish Beth Dinn both of which operate under the Arbitration Act 1996 and which have long traditions of resolving disputes within their own communities

The Supreme Court also issued a Summary of the Decision which I reproduce below


The parties entered into a joint venture agreement on 29 January 1981. Article 8 provided that any dispute arising from the joint venture should be resolved by arbitration before three arbitrators, each of whom was required to be a respected member of the Ismaili community (‘the Requirement’). The Ismaili community comprises Shia Imami Ismaili Muslims and is led by the Aga Khan. The issue
arising on this appeal is whether the Requirement, and/or the arbitration agreement as a whole, became void when the Employment Equality (Religion or Belief) Regulations 2003 (‘the Regulations’) came into force on 2 December 2003, as an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services.

The joint venture ended in 1988. The division of the joint venture assets was largely determined by a three man panel appointed in accordance with the arbitration agreement, but some matters remained in dispute. On 31 July 2008 Mr Hashwani’s solicitors wrote to Mr Jivraj asserting that a balance of over US$4.4m was due to him and giving notice of his intention to appoint Sir Anthony Colman, a retired judge of the Commercial Court, as an arbitrator. Sir Anthony was not a member of the Ismaili
community. Mr Jivraj commenced proceedings for a declaration that his appointment was void as a breach of the Requirement. Mr Hashwani sought an order that Sir Anthony be appointed as sole arbitrator.

The High Court (David Steel J) held that the appointment of arbitrators fell outside the scope of the Regulations as they were not ‘employed’ or, if they were, that the Requirement fell within the exception permitted for genuine occupational requirements which it was proportionate to apply. Had he held that the Requirement was void, he would have held that the arbitration agreement as a whole was void.

The Court of Appeal allowed Mr Hashwani’s appeal in relation to the Regulations, finding that arbitrators were employed and that there had been unlawful religious discrimination. However, they concluded that the agreement should not be enforced with the Requirement severed from it and, accordingly, Sir Anthony’s appointment was invalid (‘the severance issue’).

Mr Jivraj appealed to the Supreme Court in respect of the finding that the clause was void by reason of the Regulations. Mr Hashwani cross-appealed on the severance issue.


The Supreme Court unanimously allows the appeal on the ground that an arbitrator is not a person employed under a contract personally to do work within the meaning of the Regulations, which do not therefore apply. The majority (Lord Phillips, Lord Walker, Lord Clarke and Lord Dyson) also find that the Requirement would have fallen within the exception for genuine occupational requirements if the Regulations had applied. Lord Mance preferred not to deal with this issue as it did not arise in the
light of the finding that the Regulations did not apply. The judgment of the majority is given by Lord Clarke.

The High Court judge had correctly concluded that an arbitrator was not employed within the scope of the Regulations [22]. He or she fell outside the definition of a worker laid down by the case law of the European Court of Justice and was instead an independent provider of services who was not in a relationship of subordination with the person who received the services [34][40]. The dominant purpose of the contract was not the sole test for determining employment, although it might be
relevant in arriving at the correct conclusion on the facts of a particular case [39]. An arbitrator was a quasi-judicial adjudicator whose duty was not to act in the particular interests of either party [41]. The dominant purpose of the appointment, insofar as it was relevant, was the impartial resolution of the dispute [45].

The question of whether the Requirement was a ‘genuine occupational requirement for the job’ for the purposes of the exception in regulation 7(3) of the Regulations did not therefore arise. However, whether a particular religion or belief was a legitimate and justified requirement of an occupation was an objective question for the court [59]. Arbitration was more than the application of a given national law to a dispute and a stipulation that an arbitrator be of a particular religion or belief can be relevant
to the manner in which disputes are resolved [61]. In this case, the judge had correctly found that the Ismaili community had demonstrated an ethos, based on religion, for dispute resolution contained within that community [68]. The test was not one of necessity. The parties could properly regard arbitration before three Ismailis as likely to involve a procedure in which parties could have confidence and as likely to lead to conclusions of fact in which they could have particular confidence [70]. The severance issue did not therefore arise [72].

References in square brackets are to paragraphs in the judgment

Friday, 24 June 2011

Should religious law be curbed ? - Guardian Debate

The Guardian are running a debate on Religious Courts inspired by the Bill introduced by Baroness Cox

I have contributed an article as have others and there will no doubt be other articles and comments yet to come which I will add to this Blog as they appear

Should religious law be curbed?

Nesrine Malik: What is Lady Cox's bill really about?

Musleh Faradhi: Sharia bill is based on a false premise

Neil Addison: Lady Cox's bill is not so controversial

Thursday, 16 June 2011

Annual Lambeth Inter Faith Lecture

On the 8th June Professor Malcolm Evans of Bristol University delivered the Annual Lambeth Inter Faith Lecture at Lambeth Palace. I had actually been invited to attend but was unable to do so due to work commitments. The speech however has been put on the Lambeth Palace Website and Professor Evans has kindly given me permission to put it on my Blog

Advancing Freedom of Religion or Belief: Agendas for Change

It is far easier to speak of the freedom of religion or belief than it is to understand what, exactly, this freedom means; what, if anything, it requires; and of whom it might be required. The meaning to be ascribed to each of the words which comprise that phrase – the words ‘freedom’, ‘religion’, ‘belief’ - is strongly contested. When considered as a phrase, the difficulty of discerning their meaning is magnified many fold, and is multiplied many times more when account is taken of the myriad viewpoints from which such meaning might be sought. Yet there is a near universal consensus that ‘the freedom of religion or belief’ encapsulates an idea of worth, and a goal to be realised. This is despite there not being a consensus on what realising that idea and that goal might actually mean in practice.

So what can be done to further the freedom of religion or belief? In this lecture I wish to focus attention on the manner in which that freedom is currently being engaged with, in order to highlight what I consider to be a singularly significant opportunity to advance the realisation of at least some elements of that freedom.

As an academic public international lawyer, I am concerned with the manner in which the freedom of religion or belief is currently being addressed as a matter of international human rights law. Perhaps I should also add that although I tend not to draw a great deal on legal and human rights theory, I fully recognise that human rights-thinking is merely one way of approaching the subject, and that many people– possibly including some in this room – might have significant difficulties with taking a human rights approach to it. Whilst human rights law most certainly does offer legal protection to the freedom of religion or belief, it does so in a way which many religious believers find difficult to accept – for example, by the way in which it legitimises restrictions on some forms of religious activities in pursuit of other rights, goals or values. On the other hand, there are many who contest the legitimacy of religion or belief being accorded any special recognition as a human rights at all, and who consider that the interests of believers are adequately protected by the more general freedoms of expression, association, family life and others. This has lead to a particularly rich ‘debate’ of late on the role of religion in public life, a debate which is set to run and run. We should be glad that it may do so. But such discussions need to be put in a broader factual context.

Whilst debate continues over the rightful place of religion in the public life of a liberal democracy, day in, day out, around the world untold numbers of people continue to face the risk or reality of restriction, hostility, violence or death - on an individual or on a communal basis - because of the beliefs that they hold, or as a result of their real or perceived religious identities. Recent surveys suggest that over 70% of the world’s population live in countries where there are high or very high levels of restrictions on religious freedom.

At one level, there is something quite astonishing at the complacency of the international community when faced with the evidence of such levels of repression. It is almost as if such repression is ‘only to be expected’ or is something which believers ‘bring upon themselves’ by choosing to believe what they believe, or by believing what they believe in that particular place or at that particular time: – in short, that since they are, by and large, the authors of their own misfortunate, the remedy for their problems lies within their own hands. Behind this, however, lies a far deeper and more serious reason for this relative inertia: the entire conceptual apparatus of the ‘modern’ state, and of the structure of the international community, still remains grounded upon the political settlements arising from the 17th Century Wars of Religion. The idea of one group of states exerting itself against another group of states for the purposes of propagating religion or in order to protect religious believers takes us to a place where we have been, and to which few wish to return. As we know, the easiest way to undermine the legitimacy of any military intervention in the affairs of another state is to label it as a form of ‘jihad’ or ‘crusade’.

The same holds true of interventions of a more political or diplomatic nature. There is a very fine line between raising legitimate concerns about the treatment of religious believers and being seen as championing the cause of forces antithetical to the interests of the state – not least because it may happen to be true! It is also true that States tend to raise issues of religious freedom largely in respect of, and in response to pressure from, the religious groups which have influence within their own jurisdictions. This adds to the sense of partiality or instrumentality. I shall return to this point later, but for now we just need to acknowledge that there are a whole host of deep-seated reasons why it is not very easy for the international community to respond to the situation faced by many believers. As a result, the reluctance to do so, whilst dispiriting, is not irrational.

It is, then, all the more remarkable that there is a potential tool that can be used by the international community to address these issues –this tool being is the language of international human rights. Being realistic, I see no other way of making significant and sustainable progress in addressing the practical predicaments of religious believers other than by developing the framework of international human rights protection. This may not seem particularly controversial – but it is. There is, however, more. I think it is not only an option, but it is fast becoming a necessity in order to prevent the further erosion of the position of religious believers in many countries.

This will not be a comfortable message for those who do not like the way in which the application of human rights thinking has generated outcomes in some high profile domestic situations – such as those cases concerning the wearing of religious symbols in the workplace, in schools, in cases concerning attitudes to morality or those concerning issues of sexual orientation). I would, however, respectfully suggest that this may be something which is just going to have to be lived with (or, perhaps more positively, worked on). Without wishing to sound too apocalyptic, there is a lot at stake and, whilst certainly not trivial, matters such as these are not of an order to justify rejecting the contribution which human rights thinking can bring to the protection of religious freedom more generally.

Moreover, like it or not, international human rights law does now provide the framework within which issues concerning the enjoyment of the freedom of religion or belief are being addressed internationally, and this is going to continue for quite some time to come. It will do so well, less well, or badly – but as far as the international community is concerned, the question that counts is whether or not believers are being treated in accordance with international human rights standards.

In the time available, I will consider a number of recent developments which, in my view, suggest that there is both an opportunity and a need for new thinking on how best to proceed in order to advance the freedom of religion or belief within the international arena. Before doing so, there are two more general points which I wish to make.

First, and obviously, the rights of religious believers can and are protected by many other rights in addition to the ‘freedom of religion or belief’. Examples include the right to life, freedom from torture and inhuman or degrading treatment, the freedom of expression, of association, as well as the more procedurally oriented rights concerning detention, fair trial, the rule of law, etc, etc. These are all very valuable safeguards, and add to the attraction of human rights as a means of addressing the vulnerabilities of religious believers in many societies. At the same time, there is, in my view, a need for the freedom of religion or belief to be addressed as a human right: directly, and not merely as an adjunct to others. For those who adhere to forms of religion or belief, their beliefs represent foundational elements of their conception of life. A rights-based approach which fails to acknowledge and respect this reality is diminished and is inevitably going to lack legitimacy.

Secondly, when I speak of international human rights law as a ‘tool’, I am not only referring to its institutional machinery, such as its various Councils, Committees, Rapportuers, etc, (the strengthens and weaknesses of which need not detain us). I am also referring to the power of human rights approaches - when properly mediated through domestic, regional and international political processes - to influence the application of domestic law and administrative practice. Whilst this offers ‘no quick fix’ to the most egregious examples of abuse, it does offer real opportunities for worthwhile incremental development.

The first conclusion to be drawn from what I have said is that if faith communities wish to make a positive contribution to the protection of religious liberty they must be prepared to (a) fully engage with human rights approaches and (b) to fully engage with the relevant domestic, regional and international political processes in an informed and credible way.

The latter – credibility - is the more difficult of these two desiderata, as there is a certain asymmetry to be overcome. It is generally accepted, and expected, that States will work internationally in their own self-interest, and in the interests of their nationals. It is also generally accepted as legitimate for Non-Governmental Organisations to take an instrumental approach, aimed at the realisation of their organisational goals. But when organised Religions seek to act in precisely the same way, it is often seen negatively, and as exemplifying ‘the problem’ with religion, which is that believers are prone to act inappropriately by seeking to influence matters which are ‘not their business’.

Religious liberty is, however, the business of faith communities: the problem, perhaps, is that they are often seen as being interested only in the rights of their own, and not in the equivalent rights of others – and regrettably this is often the case. Many religious communities and organisations insist that they stand for freedom of religion or belief for all. Yet the number of religious communities and organisations which, as a central part of their work on the freedom of religion or belief, routinely defend of the rights of people of other faiths and beliefs is rather small. The predominant interest which faith communities show in the rights of their own is also quickly discerned by diplomats and others with whom religious communities seek to engage on human rights matters. Whatever the reason for it, there is a barrier here which religious communities need to overcome if they are to be listened to. Unless and until that barrier is overcome, the ability of the international community to engage effectively with the protection of the freedom of religion as a human right will be diminished for the want of those with a key stake in that process – the faith communities themselves – being able to find an effective way of fully engaging with the process. But what is there to engage with?

The Forgotten Process

The Freedom of Religion or Belief has not fared particularly well as a human right when compared to some other issues. The 1948 Universal Declaration on Human Rights sets out in Article 18 the basic approach which has been followed in most other international, and many other regional, human rights instruments. That approach is based on the idea that religion or belief is essentially a matter of individual choice and that everyone should have the freedom to hold whatever form of belief (religious or otherwise) that they wish. This ‘inner freedom’ (forum internum) is complemented by the freedom to act in accordance with the beliefs which one holds, this being achieved by recognising the additional right to ‘manifest’ one’s religion or belief in a number of ways – through teaching, worship, observance and practice. The exercise of this right to ‘manifest’ ones’ religion or belief may, however, be restricted in order to protect the rights and freedoms of others, always provided that such restrictions are proportionate to the ‘legitimate aim pursued’. This, then, provides the basic framework within which the debate concerning the contours of the freedom of religion or belief takes place.

For all its iconic status, the Universal Declaration was not intended to be a direct source of international legal obligation. The usual pattern of standard setting that has emerged within the UN is for a non-binding Declaration to be adopted by the General Assembly, and then for a legally binding Convention to be drafted and opened for adoption. It was as far back as 1956 that the UN first decided to undertake further work on the freedom of religion or belief, a process that culminated in a Report in 1960 which set out 18 draft ‘principles’. Then, in 1962 the UN General Assembly decided that Declarations and Conventions should be drafted on the twin topics of racial discrimination and on discrimination based on Religion or Belief.

Whilst the Declaration on Racial Discrimination was adopted in 1963 and the Convention in 1965, progress regarding Religion or Belief took a very different trajectory. Oddly, it was decided to draft a Convention before the Declaration: this process ground to a halt in 1967 and has not been returned to since. In the meanwhile, and belatedly, attention switched back to the idea of drafting a Declaration and this was duly adopted in 1981. This year, we mark its 30th Anniversary. So what has happened to the Convention, which would have provided a more detailed, comprehensive and rounded source of legal obligation concerning the freedom of religion or belief? The short answer is, basically, ‘nothing’. Moreover, for many years now it has been the received wisdom that it would be ‘premature’ to return to this task. This is a view which previously I subscribed to myself – but it is a view which I no longer hold. Why?

The reluctance to return to this topic has largely been driven by the worry that it might result in a lowering of existing standards rather than in the raising of them. The archetypal example of this concern relates the freedom to change ones religion or belief (though there are others). The Universal Declaration, and for that matter, the European Convention on Human Rights, expressly provides that the freedom of religion includes the freedom to ‘change’ ones religion. This is not found in the 1966 International Covenant on Civil and Political Rights which merely speaks of the right to ‘have or to adopt’ a religion of one’s choice. The 1981 Declaration takes a further step backwards, referring only to the right to ‘have’ a religion. Although it is routinely argued that the right to change one's religion is inherent in the very concept of the freedom of religion or belief, this is not universally accepted. (If any reminder of this were needed, attempts were made to insert a reference to the right to change one’s religion or belief in the annual Resolution on the Freedom of Religion or Belief when it was being debated within the UN Human Rights Council in March of this year, but with no success.)

At its most basic, the arguments against returning to the drafting of a UN Convention on the Freedom of Religion or Belief all come down to the argument that it would be unwise to run the risk of unsettling the consensus that exists around the existing accepted standards. This argument fails on at least three counts.

First, it fails because the ‘consensus’ is largely absent. There is no consensus. At best, there has been a consensus around the general ‘approach’ found in Article 18 of the UDHR, but only in the most abstract of fashions. Not only has there been ‘push back’ on some elements of Article 18 ( - for example, the issue of ‘change’ of religion), but there is little consensus over how it is to be applied in practice – as evidenced by the controversies unleashed by decisions of the European Court of Human Rights applying the similarly worded Article 9 of the ECHR on issues such as: bans on headscarves in Universities in Turkey, the appropriateness of forms of religious education in state school curricula; the presence of crucifixes in classrooms – and much else besides. Moreover, the ‘thin’ consensus around the approach exemplified by Article 18 and Article 9 is itself increasingly fragile as it is based upon the idea of there being a clear public/private divide – but this is fast disappearing into an ever expanding grey zone in which everything is ‘up for grabs’.

Secondly, it fails – I would argue – on the grounds that the current ‘consensus’ has done little to combat the rising tide of restriction, hostility and violence experienced by many religious believers. The achievements of the current ‘consensus’ position are not so impressive that it would be running too great a risk to open it up to debate.

Thirdly, and most decisively, that debate has already been opened up anyway. But rather than being conducted in an open and transparent fashion, focussed on enhancing the level of protections offered to all those whose freedoms of religion or belief are under threat, it has been done in ways which tend to do more harm than good: these being the 'Defamation of Religions Debate' and ‘the Rise of the Phobias’, to which I now turn.

The ‘Defamation of Religions’ Debate

It is beyond doubt that the freedom of religion has a collective dimension. However, this does not mean that human rights law should be used – by individuals or by religious bodies - to promote particular religious values, or to protect believers or beliefs from critical or even offensive comment. Nor should it be used to restrain others from behaving in ways which believers deem to be inappropriate. (There are some caveats to this but they need not concern us at the moment). The starting point for human rights law should be the right of the individual believer – alone or in community with others - to hold and to act in accordance with their beliefs. Generally speaking, it is only if the level of adverse comment, criticism or behaviour reaches a level of intensity which prejudices the ability of a believer to exercise their own freedom of religion or belief that grounds for intervention arise.

Nevertheless, this has not prevented concerted efforts being made within international fora to support the very opposite idea – the idea that States should be entitled to use their legal powers to restrict those who seek to ‘defame’ a religion. The claim is that restrictions should be applied to those who fail to respect the values of the religious system in question. It is on the basis of such approaches that action is taken against those who oppose apostasy or blasphemy laws. It is also on this basis that action is taken against those whose lifestyles and mores do not accord with those espoused by the dominant. The precise parameters of the idea have always been rather vague, but this has not stopped the UN from adopting a resolution annually since 1999 in support of restrictions on those who 'defame religions' (albeit with ever declining majorities). Since the Resolutions were couched in the language of the promotion of tolerance and respect, and combating negative stereotyping of religion, it is easy to see why these resolutions resonated with many. But over time their repressive potential has come to be recognised. As a result, the language used in the Resolutions began to shift away from ‘defamation of religions’ and towards the more widely accepted language associated with ‘combating incitement to religious hatred’.

In March of this year (2011) it appeared that the ‘defamation debate’ had finally been put to rest when the Organisation of the Islamic Conference (the Organisation which has been co-ordinating the defamation resolutions) failed to put forward a resolution on this topic, but presented and secured the adoption, without a vote, of a snappily entitled resolution on ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against[,] persons based on religion or belief’. Inter alia, this Resolution calls on States ‘To foster religious freedom and pluralism by promoting the ability of members of all religious communities to manifest their religion, and to contribute openly and on an equal footing to the society’ (para 6(b)) – but its principal thrust is on the need to tackle incitement to religious hatred.

There is no doubt that this marks a significant change in approach, both practically and conceptually. There is, however, a major difficulty with approaches based on ‘incitement’ and this concerns the point at which one seeks to intervene to prevent it. At one end of the spectrum lies intervention in order to prevent the imminent risk of violence, at the other lies intervention in order to suppress forms of expression or activities which challenge, question or merely run contra to the values of others, and to which they might object.

It is fair to say that the recent UN Resolution HRC/16/18 lies closest to the former rather than the latter end of the spectrum - though traces of the latter are also to be found within it. But it may be that celebration is premature. Less than one month after the Resolution was passed, a quite extraordinary situation emerged within the ad hoc group on ‘complementary standards’. This is the rather opaque name given to the process that arose out of the Durban Review Conference to consider strengthening action against racial discrimination, by undertaking further standard setting activity. At its session in April 2011, the newly elected Chair, having first attempted to adopt a ‘blank’ agenda (i.e., so no-one would know in advance what they had agreed to discuss), was persuaded to identify at least some of the proposed topics in advance - and one of those included in the list of four concerned the parameters of ‘incitement to religious hatred’, raising concerns in some quarters that the same issues previously pursued from the perspective of ‘defamation of religion’ were about to come back yet again, but in another guise.

There are more examples of such things, but the point I wish to make is simply this: the realisation that ‘defamation of religions’ was more likely to serve as a tool of repression than as a tool of religious freedom resulted in the language of the debate being shifted to the more widely accepted and legitimated language of combating incitement to religious hatred (and who – in principle – is going to object to that idea?) The problem lies in the malleable contours of that concept, and it may well be that all that has happened is that the substance of the issue has just been transferred from one forum to another. In other words, the forces which seek to subvert the freedom of religion and convert it into a means of repression remain alive, well, and focussed.

The question which continually gets lost in these twists and turns is really rather simple, but really rather important: and it is –‘why not start with the idea of the freedom of religion or belief for everyone, rather than focussing on the action to be taken against those who denigrate the beliefs of others?’ Tackling those who gratuitously attack religious believers is of course an important element of a protective framework – but it can hardly provide its starting point, let alone comprise that framework.

In reality, most of the restrictions placed on the freedom of religion or belief - and, therefore, much of the hostility and violence which believers face - are not the product of anti-religious sentiment within the populous at large. They are a result of the negative stereotyping, antipathy, or down-right hostility displayed by many state systems either to certain forms of religion or belief in particular , or to all forms of religion in general. Calling upon states to address these problems by taking action against those who denigrate religion is all very well, but such an approach fails spectacularly to address the overriding problem, which is how to hold States to account for their own failure to respect and protect the rights of all believers. This, I would suggest, would be very much better place to start – and is at the heart of what human rights commitments under international law are actually all about.

It is very tempting for religious communities to accept the protection and support which a State might offer them, even when that support takes the form of repressing the rights of others – and it can be very difficult to champion the rights of those whose views one might believe to be profoundly wrong. Yet if religious communities are genuinely interested in furthering the freedom of religion or belief, this is exactly what they must do. Faith communities must reject the superficial attractions of claiming or accepting such freedoms for themselves alone, and unhesitatingly support the freedom of religion or belief for all. Unless or until religious communities are prepared to champion for everyone the freedoms that they wish their own followers to enjoy, there is likely to be little opportunity for seriously furthering the freedom of religion or belief at all.

The Rise of the ‘Phobias

A second area in which developments have taken place is in the related field of tackling anti-Semitism and Islamaphobia. Both are discernible phenomena which are founded on hatred, prejudice or fear, and both are causes of serious concern. It is right that they be tackled. But how?

There are considerable dangers in tackling the hostility experienced by some religious groups by offering them heightened degrees of legal protection which is not offered to others. As we know only too well, those who consider themselves to be subject to the same disabilities but who are excluded from the scope of protection provided inevitably become aggrieved and this becomes a source of friction – as we know from the troubled history of blasphemy laws both in this country and elsewhere. And do we want to encourage a ‘competitive approach’ to victim status? Should we develop concepts of Baha'iophobia or Jehovah's Witnessophobia, given that in different parts of the world followers of both these faiths experience extremely serious violations of their rights and freedoms?

Yet this has already happened – to some acclaim – as regards Christianity itself. It is true enough that an increasing number of Christians have begun to feel increasingly marginalised within parts of Western Europe, as general societal assumptions concerning the place of Christianity within the order of things has evolved. This has been taking place at a time in which the extent of anti-Christian violence in other parts of the world has been both increasing and become increasingly visible. There has been some conflating of these two separate phenomena – despite their extremely different contexts – and, as a result, there have been an increasing number of calls for action to be taken against ‘discrimination against Christians’, or ‘Christianophobia’. In March 2009 the OSCE organised the first ever round table on ‘Discrimination against Christians’ within an international organisation and the use of such language has now become fairly commonplace in international political fora. Yet it is also noticeable that some of those who have been most vocal in promoting concepts of Islamophobia and Christianophobia and the like are chiefly interested in western Europe – and have paid less attention to even their co-religionists in places such as Belarus, Central Asia, or the South Caucasus who experience severe violations of the freedom of religion or belief – let alone the plight of others. This suggests that such concepts all too easily lend themselves to special pleading, and takes up time that might be better spent focussing the attention of the international community on the severe violations of the freedom of religion or belief that continue unabated and – largely – unaddressed.

Be that as it may, in it clear that there has been a significant change of approach within international organisations which have been increasingly willing to make statements in support of Christian groups facing hostility, discrimination and violence across the world: Notable recent examples include a resolution of the European Parliament on 21 January 2011(followed by a broad ranging Conclusion on the Freedom of Religion or Belief by the Council of the European Union on 21 February 2011) and the Resolution of the Parliamentary Assembly of the Council of Europe of 27 January 2011 (which has been followed by further work in its Committee on Legal Affairs and Human Rights). The OSCE returns to the subject in September of this year, with a special meeting on ‘Preventing and Responding to Hate Incidents and Crimes and Christians.’ After a ‘wilderness period’, a so-called ‘Christian agenda’ is firmly established on the political map along with Anti-Semitism and Islamaphobia.

As I have said, there is, I fear, danger in this approach. Organised religions should not be entering into unhealthy competition with each other in order to gain recognition as a ‘particularly persecuted category’ in order that they are able to gain the attention of the political process. What, for example, would be the threshold of persecution which needs to be crossed? Do we want to encourage a competition for victim status?

Moreover, all this does is magnify the perception that those involved in advancing such concerns – no matter how legitimate they may be – are motivated by preference or partisanship, and this serves only to undermine both the effectiveness and the legitimacy of the views expressed or the action taken in the eyes of those to whom they are addressed. As a result, such approaches can fuel the very hostility which they are intended to address. Whilst it is of course entirely proper that the particular needs of particular groups are highlighted when it is appropriate to do so, the problem is that - like the defamation debate – ‘phobia- isation’ has become a surrogate for the lack of progress (or the unwillingness to confront) the underlying issue, which is the lack of a real understanding of, and commitment to, the freedom of religion or belief for all.

Future Agendas?

Are there signs of positive change? I think there are. It would be wrong of me to end without noting that the UK Foreign Office has recently highlighted the freedom of religion or belief as a key human rights concern, a concern further highlighted in the Foreign Secretary’s Easter Message, and others. The European Union is also now taking a keen interest and will be developing its strategies and approaches in the months to come. There is, then, a great deal of thinking taking place - but it is taking place in disparate and disconnected fora. Not only is this disconnected approach undesirable in its own right, it also makes it very much more difficult for others – including religious communities - to know what is happening and to become involved.

I have already said that I consider it essential that religious communities do find effective ways of contributing to such developments, in a non partisan fashion. Perhaps even more importantly, I believe it to be essential that they try to influence the manner in which the freedom of religion is addressed by the international community – and that they encourage it to be focussed upon what the freedom of religion or belief means, on what it requires, and of whom it is required. Rather than being a celebration of a thing of worth, the approach currently adopted by the international political community remains focussed on restrictions on the rights of others, and is dominated by the language of special pleading, disadvantage, hostility, and hate. This must change.

I have no doubt that freedom of religion or belief is attaining a prominence in international affairs unforeseen and unforeseeable even five, let alone ten years ago. The reasons are distressingly negative – based as it is on increasing levels of repression and violence against believers of many faiths. But there does not seem to be any momentum within the international community to address the issues at the heart of the problem. Instead, the dominant agendas are those I have mentioned – defamation of religions, incitement to religious hatred, combating anti-Semitism, Islamophoia, Christianophobia, Discrimination against Christians, etc, etc. These agendas all run the risk of being self-defeating by being overly self-serving, particularly if they are the only agendas which are being pursued.

Hence there is a pressing need to return to the well-spring from which all else flows, but from which there seems to be a reluctance to draw. This involved developing a more precise understanding of what the freedom of religion as a human right actually entails, and to do so in a coherent and transparent fashion to which all interested parties can contribute. We might then be better placed to develop the means by which it can be realised.

This is an agenda indeed! It will require the willingness to stand back from the advancement of partisan agendas, look beyond immediate concerns for co-religionists and – whilst seeking to address those concerns as best one might – not loose sight of the need to ensure that everyone should to able to enjoy their religion or belief, whatever that might be. This ought to be our entry point into the question – and reconsidering the question of whether we should recommence the process of producing a global legal instrument on the freedom of religion or belief might be a very good place to place to start – rolling back the essentially negative approaches of recent years and championing a more positive vision of what religious freedom has to offer.

What should Christians – and indeed those of other faiths and none - do to further freedom of religion or belief? As people of faith it is up to us to champion the causes of others as well as of ourselves. And we must do this based on a positive understanding of the value of freedom of religion or belief for all, grounded as that is in our own understanding of church, conscience and the common good. For if religious believers will not stand up for the religious freedoms of others, irrespective of their faith, why in heaven’s name should anyone else?"

Sunday, 12 June 2011

Arbitration and Mediation Services (Equality) Bill

Baroness Caroline Cox a member of the House of Lords has introduced into Parliament the Arbitration and Mediation Services (Equality) Bill (HL Bill 72) which is an attempt to deal with some of the perceived problems involving Shariah Tribunals which I have blogged about before and which were covered in a report by the Think Tank Civitas for which I wrote the introduction. However the Bill itself never once mentions Shariah and the changes it proposes would apply to all forms of Arbitration. Because it is a Private Members Bill rather than a Government Bill it probably has little chance of becoming law but it has certainly reignited the debate on Shariah Tribunals in Britain

The Bill on first sight appears to be a well thought out attempt to deal with the problems in a a targeted way and it proposes amendments to the Equality Act 2010, Arbitration Act 1996, Family Law Act 1996, Criminal Justice and Public Order Act 1994 and the Courts and Legal Services Act 1990.

The main proposal is in s4 of the Bill which states in unequivocal terms that Arbitration cannot deal with Criminal and Family law matters. That is in fact a statement of the existing case law which has not previously been set out in statute.

Section 5 of the Bill similarly seeks to deal with the situation where Shariah Rulings have been enforced by the Civil Courts in the pretence that they reflect mediated agreements rather than acquiescence in directed judgments and it requires Family Courts to satisfy themselves properly that a mediation agreement is indeed made by both parties freely and with full knowledge of their specific legal rights. The misuse of Mediation agreements as a backdoor way to introduce Shariah into UK Family Law is again a problem I have Blogged about previously.

The amendments to the Equality Act complement the amendments to the Arbitration Act by making discrimination on grounds of sex unlawful in Arbitration in particular by making it unlawful to treat the evidence of a woman as automatically of less value than the evidence of a man or vice versa and also making it unlawful to Arbitrate in inheritance disputes on a basis that presupposes that women should automatically inherit less than men or vice versa. These changes are clearly specifically aimed at Shariah Tribunals because of the historic Shariah law principles that the evidence of a woman is worth only half that of a man. Once again though this proposal is clearly aimed at Shariah Tribunals the word Shariah is never mentioned and the basic principle of equality is difficult to argue against.

Particularly interesting and imaginative however is the proposal in s1(4) of the Bill which would amend the so called "public sector equality duty" in s149 of the Equality Act which gives public authorities a specific duty to take steps to minimise inequality. The Bill proposes that public authorities should be under a legal duty to take steps to prevent polygamous marriages and to inform parties in unregistered religious marriages that they have few legal rights compared to a spouse in a registered marriage. I wonder if this might even lead Police and other authorities to start implimenting s75 Marriage Act 1949 which makes it illegal to perform unregistered marriage ceremonies. In a conference I attended recently I was surprised when one of the Muslim delegates delegates quite openly stated that the reason Muslim Marriages were not being registered was in order to permit Polygamy.

I have somewhat more concerns over sections 6 and 7 which deal with proposed changes to the criminal law. I frankly cannot see the point of the proposal in s6 since s51 Criminal Justice and Public Order Act 1994 already deals with the intimidation of witnesses in cases of domestic violence and I have never seen any suggestion to the contrary. I also have problems with s7 which proposes to make it a criminal offence where anyone

(a) falsely purports to be exercising a judicial function or to be able to make legally binding rulings, or

(b) otherwise falsely purports to adjudicate on any matter which that person knows or ought to know is within the jurisdiction of the criminal or family courts.

I don't have any major problems with (a) though if any person was falsely claiming to be exercising a judicial function and receives payment for it that would already be an offence of obtaining by false pretences. I do however have real problems with (b) since it could make it very difficult for religious courts such as Jewish Beth Dinn or Catholic Marriage Tribunals both of which deal with purely religious Divorces (Jewish) or Annulments (Catholic) and do so only after the Civil Courts have dissolved the marriage. There is also the possibility that a strict definition of the proposed offence could even prevent employers holding internal disciplinary hearing dealing with alleged criminal acts by employees such as theft at work. On balance I think (b) goes too far but I am prepared to accept (a)

The major question is I suppose whether Caroline Cox is in fact interfering in Freedom of Choice ie the principle that people should have the freedom to choose private adjudication of their disputes without the law interfering. That is certainly what the opponents of her Bill will say and was in fact a major point that we discussed at a conference on Shariah I attended earlier in the year. The consensus we arrived at was that if the adjudication, whether Arbitration or Mediation, is ultimately going to be registered with the Civil Courts and enforced by them then the Civil Law does have a right to become involved and to say what legal rules or principles should apply to the making of a decision which the State is being asked to enforce.