The possibility of amending the law so as to permit the Monarch to be or be married to a Catholic is in the news again so I refer those who are interested to my earlier post on the subject A Catholic Monarch ? The Act of Settlement 1701 and Myths about Catholics and the Monarchy
I must admit I find arguments about the rules for succession to the Monarchy which are based based on arguments about "Discrimination" ludicrous. It is perfectly logical to disagree with Monarchy as an institution but to say that you support the Monarchy but then to disagree with certain of the inheritance rules as discriminatory makes no sense at all. An Hereditary Monarchy is of its nature discriminatory
Tuesday, 26 April 2011
Catholic Care v Charity Commission
The First-Tier Tribunal (Charity) General Regulatory Chamber which has replaced the previous Charity Tribunal has issued its judgment in the case of Catholic Care Leeds v Charity Commission which is the latest round of a lengthy legal process involving two Decisions by the Charity Commission, two Tribunal Judgments and a High Court Judgment.
All of this has involved an attempt by Catholic Care to amend its Charitable objects to read
"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"
but this application was refused by both the Commission and the Tribunal.
I have Blogged about this case before 23 August 2010 and 9 June 2009 and have little to add to what I said previously. Catholic Care has been pursuing the wrong legal remedy throughout this case and should have tried to achieve its objectives another way
There was a Press Release Summary sent to the media accompanying the Judgment and I attach it below
1. This case concerned an appeal by Catholic Care (Diocese of Leeds) a charity, against the decision of the Charity Commission to refuse its consent to a change of charitable objects. The charity wanted to change its objects so as to bring itself within an exemption to the Equality Act 2010 and thus be allowed to refuse to offer adoption services to same sex couples.
2. The Tribunal has dismissed the charity's appeal for the reasons given below.
3. This matter has had a complicated procedural history and has been affected by changing legislation over the past 2 years or so (paras 2-5) The test the Tribunal had to apply was under s. 193 of the Equality Act 2010 which exempts charities from the equality obligations of the Act, where the Charity (a) acts in pursuance of a charitable instrument - ie their charitable objects require it and (b) it is a proportionate means of achieving a legitimate aim.
4. It was accepted by the charity that discrimination on the basis of religious belief alone would be unlawful - para 14 - so this was not in issue. The Bishop of Leeds gave evidence in which he expressed the view that the law should respect the Catholic Church's views on this issue in the same way that it allows Churches not to have to bless civil partnerships. However, adoption is a public service, funded (in part) by local authorities, so does not have the same exemptions under the 2010 Act as those which cover private religious worship (para 60);
5. The charity argued that the discrimination should be permitted because:
(I) Same sex couples could obtain adoption services from local authorities and other voluntary agencies so would not suffer detriment if the charity alone refused them services;
(II) The charity can only operate its adoption service with the assistance of donated income, and its supporters would stop supporting it financially if it did not discriminate, so it would have to close if the discrimination were not permitted;
(III) The closure of the service was such a serious consequence that the discrimination proposed was proportionate to the aim pursued, which was that of seeking to increase the number of adoptions which take place;
(IV) The charity can attract potential adopters that other agencies would not attract because of its distinctive approach.
6. The Tribunal found that:
(I) There must be particularly weighty reasons to justify discrimination on the basis of sexual orientation, which is a protected characteristic under the 2010 Act (para 53);
(II) Same sex couples would suffer a significant detriment by not being able to use the charity's own high quality service. The availability of other services to same sex couples could not amount to a justification for discrimination by the charity (para 53 again);
(III) The charity had not made out its case that its donors would cease to support it if it offered adoption services to same sex couples. Its accounts showed that its donated income is not restricted to its adoption services but applicable for all of its work; it produced no evidence of the views of donors, only the Bishop's opinion on this point; the discriminatory views of 3rd parties cannot in any event justify discrimination by the charity (paras 54 - 57);
(IV) As to the risk of closure, the charity has not yet explored all the alternatives. Other Catholic charities have found alternative means of operating since the law changed. The expert evidence heard by the Tribunal contradicted the charity's case that if it were to close, children would be left un-adopted (para 58).
(V) The charity did not prove its assertion that an increase in its resources would inevitably lead to more adoptions taking place, because the Tribunal found that the expert evidence about the local authority funding arrangements for adoptions did not support the charity's case in this regard (para 49).
All of this has involved an attempt by Catholic Care to amend its Charitable objects to read
"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"
but this application was refused by both the Commission and the Tribunal.
I have Blogged about this case before 23 August 2010 and 9 June 2009 and have little to add to what I said previously. Catholic Care has been pursuing the wrong legal remedy throughout this case and should have tried to achieve its objectives another way
There was a Press Release Summary sent to the media accompanying the Judgment and I attach it below
1. This case concerned an appeal by Catholic Care (Diocese of Leeds) a charity, against the decision of the Charity Commission to refuse its consent to a change of charitable objects. The charity wanted to change its objects so as to bring itself within an exemption to the Equality Act 2010 and thus be allowed to refuse to offer adoption services to same sex couples.
2. The Tribunal has dismissed the charity's appeal for the reasons given below.
3. This matter has had a complicated procedural history and has been affected by changing legislation over the past 2 years or so (paras 2-5) The test the Tribunal had to apply was under s. 193 of the Equality Act 2010 which exempts charities from the equality obligations of the Act, where the Charity (a) acts in pursuance of a charitable instrument - ie their charitable objects require it and (b) it is a proportionate means of achieving a legitimate aim.
4. It was accepted by the charity that discrimination on the basis of religious belief alone would be unlawful - para 14 - so this was not in issue. The Bishop of Leeds gave evidence in which he expressed the view that the law should respect the Catholic Church's views on this issue in the same way that it allows Churches not to have to bless civil partnerships. However, adoption is a public service, funded (in part) by local authorities, so does not have the same exemptions under the 2010 Act as those which cover private religious worship (para 60);
5. The charity argued that the discrimination should be permitted because:
(I) Same sex couples could obtain adoption services from local authorities and other voluntary agencies so would not suffer detriment if the charity alone refused them services;
(II) The charity can only operate its adoption service with the assistance of donated income, and its supporters would stop supporting it financially if it did not discriminate, so it would have to close if the discrimination were not permitted;
(III) The closure of the service was such a serious consequence that the discrimination proposed was proportionate to the aim pursued, which was that of seeking to increase the number of adoptions which take place;
(IV) The charity can attract potential adopters that other agencies would not attract because of its distinctive approach.
6. The Tribunal found that:
(I) There must be particularly weighty reasons to justify discrimination on the basis of sexual orientation, which is a protected characteristic under the 2010 Act (para 53);
(II) Same sex couples would suffer a significant detriment by not being able to use the charity's own high quality service. The availability of other services to same sex couples could not amount to a justification for discrimination by the charity (para 53 again);
(III) The charity had not made out its case that its donors would cease to support it if it offered adoption services to same sex couples. Its accounts showed that its donated income is not restricted to its adoption services but applicable for all of its work; it produced no evidence of the views of donors, only the Bishop's opinion on this point; the discriminatory views of 3rd parties cannot in any event justify discrimination by the charity (paras 54 - 57);
(IV) As to the risk of closure, the charity has not yet explored all the alternatives. Other Catholic charities have found alternative means of operating since the law changed. The expert evidence heard by the Tribunal contradicted the charity's case that if it were to close, children would be left un-adopted (para 58).
(V) The charity did not prove its assertion that an increase in its resources would inevitably lead to more adoptions taking place, because the Tribunal found that the expert evidence about the local authority funding arrangements for adoptions did not support the charity's case in this regard (para 49).
Monday, 11 April 2011
Burning the Koran
It seems that there is an epidemic of Koran burnings around at present and in Wales a charge has just been dropped against Sion Owens who is alleged to have burnt a Koran in his garage. This of course follows the more widely publicised burning of a copy of the Koran in Florida by "pastor" Terry Jones.
It is clear that Terry Jones will not be prosecuted in the US because of the protection offered by the 1st Amendment so what about the legal position in Britain ?
According to the news reports the wording of the charge against Owens was that he was in possession of
"a record of visual images or sounds showing you burning a copy of the Koran whilst saying 'I am burning the Holy Koran and I hope that you Muslims are watching."
None of the news reports have specified what particular offence Owens is alleged to have committed other than some press reports referring to s 29 of the Public Order Act 1986 which cannot be correct since s29 is simply an interpretation section. I suspect it is a charge of Incitement to Religious Hatred which was introduced by the Racial and Religious Hatred Act 2006 which added a new set of sections to the Public Order Act ss 29A to 29N. The charge was probably contrary to either s29E or s29G
s29A Meaning of “religious hatred”
In this Part “religious hatred” means hatred against a group of persons defined by reference to religious belief or lack of religious belief.
It is important to note that there is nothing in the Act which prevents hatred of a religion, ie Islam, as opposed to hatred of a group of religious believers ie Muslims
29E Distributing, showing or playing a recording
(1) A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening is guilty of an offence if he intends thereby to stir up religious hatred.
(2) In this Part “recording” means any record from which visual images or sounds may, by any means, be reproduced; and references to the distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public.
(3) This section does not apply to the showing or playing of a recording solely for the purpose of enabling the recording to be included in a programme service.
s29G Possession of inflammatory material
(1) A person who has in his possession written material which is threatening, or a recording of visual images or sounds which are threatening, with a view to—
(a) in the case of written material, its being displayed, published, distributed, or included in a programme service whether by himself or another, or
(b) in the case of a recording, its being distributed, shown, played, or included in a programme service, whether by himself or another,
is guilty of an offence if he intends religious hatred to be stirred up thereby.
(2) For this purpose regard shall be had to such display, publication, distribution, showing, playing, or inclusion in a programme service as he has, or it may be reasonably be inferred that he has, in view.
There is also a specific free speech defence built into the Act
s29J Protection of freedom of expression
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
The question is whether the burning of a Koran is itself "threatening" and I frankly doubt that it is ON ITS OWN. In certain circumstances the burning of any book (Koran, Bible, Satanic Verses) could be deemed to be threatening but usually because of some other factor present alongside the burning. For example a large mob surrounding a Mosque and burning a Koran in full view of the congregation could indeed be seen as threatening but if it is simply done in someones own backyard I do not see how that could qualify as threatening. Offensive yes, insulting yes but, and it is a big but, that is not the same as being threatening and unless it is threatening the case does not get off the ground. In addition burning of a Koran can easily be described as an "expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents"
In some of the newspaper reports about the Owens case there have been suggestions that the CPS dropped the case because the consent of the Attorney General had not been obtained. Certainly a prosecution for Incitement to Religious Hatred requires the consent of the Attorney General but this does not prevent a suspect being charged and remanded in custody whilst the consent of the AG is formally sought; see R v Whale and Lockton [1991] Crim LR 692. If the charge against Owens was dropped by the CPS it was not because the AG had not been involved before the decision was made to charge him.
Moving beyond the Incitement to Religious Hatred offences there is the possibility of a prosecution under the Religiously Aggravated provisions of s4A or s5 of the Public Order Act
An offence is Religiously Aggravated when
"(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
"Religious Group" means "a group of persons defined by reference to religious belief or lack of religious belief."
To commit an offence under s4A or 5 an offender needs to use "threatening, abusive or insulting words or behaviour" and I can see that the burning of a Koran falls under the "insulting" provision. However for s4A there must be an "intent" to cause "harassment, alarm or distress" so once again context is crucial; burning a Koran in front of a group of Muslims would certainly show an intent to cause distress but a private burning I think not. As for s5 whilst intent is not necessary the
"threatening, abusive or insulting words or behaviour, or disorderly behaviour" must be used "within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby" which once again presupposes a public event with Muslims present.
So on balance I cannot see that any offence could have been committed by Mr Owens or any similar Koran burner in Britain because the simple fact of burning the Koran is not in itself a crime.
There is however a real question about the overreaction of the Police in this case which rather parallels their overreaction in arresting a street preacher last year over his comments on homosexuality. Why was it necessary to arrest Mr Owens at night and why was it necessary to hold him in custody. He had not after all been accused of a crime of violence so why was he not bailed to go to Court as would happen in most "normal" cases. The Police really do need reminding of the fact that people do have a right to express opinions that ACPO disagree with
There is also the question of Police, CPS and Home Office inconsistency in the way in which they deal with the destruction of a Koran as opposed to insults to symbols of other religions. Last year a Bible was defaced in Scotland as part of an "Arts" exhibition but no official action was taken nor was there any official criticism. in 2008 a Statue of Christ with an erect penis was displayed in an Art Gallery in Gateshead and a private prosecution was stopped by the CPS on the grounds, inter alia, of freedom of expression. If the Police and CPS are inconsistent and unfair in their application of the law that is more harmful to community relations than anything done by an individual as a personal protest.
Finally can I just make it clear that I don't support or defend the burning of the Koran or the Bible or indeed any other book it is an unpleasant and pointless thing to do but that doesn't mean it is or should be illegal. Also I know that the 'in people' spell it Q'ran not Koran in order to show how with it they are but I prefer to stick to the traditional English spelling. I also write Boadicea rather than Boudica, it is my choice which after all is what freedom should be all about.
It is clear that Terry Jones will not be prosecuted in the US because of the protection offered by the 1st Amendment so what about the legal position in Britain ?
According to the news reports the wording of the charge against Owens was that he was in possession of
"a record of visual images or sounds showing you burning a copy of the Koran whilst saying 'I am burning the Holy Koran and I hope that you Muslims are watching."
None of the news reports have specified what particular offence Owens is alleged to have committed other than some press reports referring to s 29 of the Public Order Act 1986 which cannot be correct since s29 is simply an interpretation section. I suspect it is a charge of Incitement to Religious Hatred which was introduced by the Racial and Religious Hatred Act 2006 which added a new set of sections to the Public Order Act ss 29A to 29N. The charge was probably contrary to either s29E or s29G
s29A Meaning of “religious hatred”
In this Part “religious hatred” means hatred against a group of persons defined by reference to religious belief or lack of religious belief.
It is important to note that there is nothing in the Act which prevents hatred of a religion, ie Islam, as opposed to hatred of a group of religious believers ie Muslims
29E Distributing, showing or playing a recording
(1) A person who distributes, or shows or plays, a recording of visual images or sounds which are threatening is guilty of an offence if he intends thereby to stir up religious hatred.
(2) In this Part “recording” means any record from which visual images or sounds may, by any means, be reproduced; and references to the distribution, showing or playing of a recording are to its distribution, showing or playing to the public or a section of the public.
(3) This section does not apply to the showing or playing of a recording solely for the purpose of enabling the recording to be included in a programme service.
s29G Possession of inflammatory material
(1) A person who has in his possession written material which is threatening, or a recording of visual images or sounds which are threatening, with a view to—
(a) in the case of written material, its being displayed, published, distributed, or included in a programme service whether by himself or another, or
(b) in the case of a recording, its being distributed, shown, played, or included in a programme service, whether by himself or another,
is guilty of an offence if he intends religious hatred to be stirred up thereby.
(2) For this purpose regard shall be had to such display, publication, distribution, showing, playing, or inclusion in a programme service as he has, or it may be reasonably be inferred that he has, in view.
There is also a specific free speech defence built into the Act
s29J Protection of freedom of expression
Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.
The question is whether the burning of a Koran is itself "threatening" and I frankly doubt that it is ON ITS OWN. In certain circumstances the burning of any book (Koran, Bible, Satanic Verses) could be deemed to be threatening but usually because of some other factor present alongside the burning. For example a large mob surrounding a Mosque and burning a Koran in full view of the congregation could indeed be seen as threatening but if it is simply done in someones own backyard I do not see how that could qualify as threatening. Offensive yes, insulting yes but, and it is a big but, that is not the same as being threatening and unless it is threatening the case does not get off the ground. In addition burning of a Koran can easily be described as an "expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents"
In some of the newspaper reports about the Owens case there have been suggestions that the CPS dropped the case because the consent of the Attorney General had not been obtained. Certainly a prosecution for Incitement to Religious Hatred requires the consent of the Attorney General but this does not prevent a suspect being charged and remanded in custody whilst the consent of the AG is formally sought; see R v Whale and Lockton [1991] Crim LR 692. If the charge against Owens was dropped by the CPS it was not because the AG had not been involved before the decision was made to charge him.
Moving beyond the Incitement to Religious Hatred offences there is the possibility of a prosecution under the Religiously Aggravated provisions of s4A or s5 of the Public Order Act
An offence is Religiously Aggravated when
"(a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
"Religious Group" means "a group of persons defined by reference to religious belief or lack of religious belief."
To commit an offence under s4A or 5 an offender needs to use "threatening, abusive or insulting words or behaviour" and I can see that the burning of a Koran falls under the "insulting" provision. However for s4A there must be an "intent" to cause "harassment, alarm or distress" so once again context is crucial; burning a Koran in front of a group of Muslims would certainly show an intent to cause distress but a private burning I think not. As for s5 whilst intent is not necessary the
"threatening, abusive or insulting words or behaviour, or disorderly behaviour" must be used "within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby" which once again presupposes a public event with Muslims present.
So on balance I cannot see that any offence could have been committed by Mr Owens or any similar Koran burner in Britain because the simple fact of burning the Koran is not in itself a crime.
There is however a real question about the overreaction of the Police in this case which rather parallels their overreaction in arresting a street preacher last year over his comments on homosexuality. Why was it necessary to arrest Mr Owens at night and why was it necessary to hold him in custody. He had not after all been accused of a crime of violence so why was he not bailed to go to Court as would happen in most "normal" cases. The Police really do need reminding of the fact that people do have a right to express opinions that ACPO disagree with
There is also the question of Police, CPS and Home Office inconsistency in the way in which they deal with the destruction of a Koran as opposed to insults to symbols of other religions. Last year a Bible was defaced in Scotland as part of an "Arts" exhibition but no official action was taken nor was there any official criticism. in 2008 a Statue of Christ with an erect penis was displayed in an Art Gallery in Gateshead and a private prosecution was stopped by the CPS on the grounds, inter alia, of freedom of expression. If the Police and CPS are inconsistent and unfair in their application of the law that is more harmful to community relations than anything done by an individual as a personal protest.
Finally can I just make it clear that I don't support or defend the burning of the Koran or the Bible or indeed any other book it is an unpleasant and pointless thing to do but that doesn't mean it is or should be illegal. Also I know that the 'in people' spell it Q'ran not Koran in order to show how with it they are but I prefer to stick to the traditional English spelling. I also write Boadicea rather than Boudica, it is my choice which after all is what freedom should be all about.
Thursday, 7 April 2011
Religious Tribunals and Discrimination Law
There is an interesting case which is wending its way to the Supreme Court at the moment which could have some interesting implications for Religiously based Tribunals in particular the Muslim Arbitration Tribunal (MAT) and the Jewish Beth Din Courts Both of these bodies, in addition to their undoubted religious decisions also provide Arbitration Services where their decisions can be registered under the Arbitration Act and then enforced by the ordinary Civil Courts. I have blogged about this previously 29 June 2009 and 3 February 2008
The case is that of Jivraj v Hashwani which has been before the High Court [2009] EWHC 1364 (Comm) and the Court of Appeal [2010] EWCA Civ 712
The case involved two businessmen who are Ismailis which is a sect of Islam best known by its leader the Aga Khan. They had entered into a business agreement and, as is common in such agreements there was a clause that required any dispute to be resolved by Arbitration rather than through the Courts. The Arbitration clause said that any dispute
"shall be referred to three arbitrators (acting by a majority) one to be appointed by each party and the third arbitrator to be the President of the H.H. Aga Khan National Council for the United Kingdom for the time being. All arbitrators shall be respected members of the Ismaili community and holders of high office within the community."
When the parties eventually fell out one of them argued that the Arbitration clause was invalid because it constituted unlawful religious discrimination in employment. The question for the court was whether an Arbitrator is an Employee for the purposes of Discrimination law because if he/she is then any Arbitration clause or procedure which requires the Arbitrator to be a practicing member of a religion such as an Iman or a Rabbi is unlawful and any Arbitration decision unenforceable.
The High Court decided that an Arbitrator is not an Employee and therefore Discrimination Law does not apply whilst the Court of Appeal decided that an Arbitrator is an Employee and therefore it is illegal to require the Arbitrator to be a practicing member of any religion.
Since the decision is going to be appealed to the Supreme Court I will await with interest its decision which could be of quite significant importance in the always vexed question of the growth in Sharia Courts or Tribunals in Britain
The case is that of Jivraj v Hashwani which has been before the High Court [2009] EWHC 1364 (Comm) and the Court of Appeal [2010] EWCA Civ 712
The case involved two businessmen who are Ismailis which is a sect of Islam best known by its leader the Aga Khan. They had entered into a business agreement and, as is common in such agreements there was a clause that required any dispute to be resolved by Arbitration rather than through the Courts. The Arbitration clause said that any dispute
"shall be referred to three arbitrators (acting by a majority) one to be appointed by each party and the third arbitrator to be the President of the H.H. Aga Khan National Council for the United Kingdom for the time being. All arbitrators shall be respected members of the Ismaili community and holders of high office within the community."
When the parties eventually fell out one of them argued that the Arbitration clause was invalid because it constituted unlawful religious discrimination in employment. The question for the court was whether an Arbitrator is an Employee for the purposes of Discrimination law because if he/she is then any Arbitration clause or procedure which requires the Arbitrator to be a practicing member of a religion such as an Iman or a Rabbi is unlawful and any Arbitration decision unenforceable.
The High Court decided that an Arbitrator is not an Employee and therefore Discrimination Law does not apply whilst the Court of Appeal decided that an Arbitrator is an Employee and therefore it is illegal to require the Arbitrator to be a practicing member of any religion.
Since the decision is going to be appealed to the Supreme Court I will await with interest its decision which could be of quite significant importance in the always vexed question of the growth in Sharia Courts or Tribunals in Britain
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