Religion Law Blog

Freedom of Speech and London University Students

2012-01-30T13:54:00.007Z

Students at University College London have voted to force Catholic organisations to invite pro-abortion speakers to pro-life discussions.

The motion, adopted by 2,002 votes to 818, says:

“Any future open events focusing on the issue of termination invite an anti-choice speaker and a pro-choice speaker as well as an independent chair, to ensure there is a balance to the argument.”

The union also voted to adopt a pro-abortion stance and formally affiliate itself to the organisation Abortion Rights.

The motion noted:

“On October 31 2011, UCLU Catholic Society advertised a ‘discussion’ around the issue of abortion which consisted of one pro-life speaker. It is also noted that people who held opposing views were invited to attend......It continues: “An official pro-choice policy would not prevent students who disagree with termination on ethical or religious grounds from exercising their right not to seek a termination. Pro-choice policy encourages students to make well-informed decisions regarding their bodies and their futures. When clubs and societies invite pro-life speakers they should also invite a pro-choice speaker to balance the debate and vice versa.”

I hope the Catholic Society simply ignores this Motion which is completely illegal under s43 the Education (No 2) Act 1986 which guarantees freedom of speech at Universities also illegal under Articles 9, 10, and 11 of the European Convention on Human Rights.

The Student Union has no right to dictate what speakers are invited by Student Organisations. Also the resolution assumes that everyone involved in this debate can be easily categorised as "pro-life" or "pro-choice" which is a simplistic analysis. Many people for example regard Nadine Dorries MP as "pro-life" though she describes herself as "pro-choice". What right does the Student Union have to decide which category a speaker should be classified under ?

The Students who voted for this resolution have demonstrated a totalitarian intolerance unworthy of an Academic Institution. Hitler and Stalin would be proud of them.

Hosanna-Tabor Differences in US and UK approaches

2012-01-15T18:14:00.005Z

Following my earlier Blog on the US Supreme Court Hosanna-Tabor case I have been reading the Judgment again.

The main judgment given by Chief Justice John G. Roberts Jr., was based largely on the courts’ determination that Perich qualified as a “minister” and that “ministerial exception” therefore applied to her. The court noted that Perich had been “commissioned as a minister” and was considered a “called teacher,” who had received a calling from God to fill the position. She taught both religion and secular subjects, and she regularly led students in prayer and devotional exercises.

However, in a concurring opinion, Justice Clarence Thomas went further, arguing that the court should not have tried to make its own determination of whether or not Perich could be considered as a minister.

“the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization’s good-faith understanding of who qualifies as its minister.......the question whether an employee is a minister is itself religious in nature, and the answer will vary widely.”

This is clearly not the approach that has been adopted by the UK courts most notably in the recent case of President of the Methodist Conference v Preston [2011] EWCA Civ 1581 where the Courts considering the doctrine of the Methodist Church in determining whether a Methodist Minister was or was not an employee which is similar to the Courts approach in the JGE case

In contrast to Justice Thomas but also in striking contrast to the UK cases Justices Alito and Kagan in their concurring opinion in the Hosanna-Tabor judgment stated that the term “minister” or indeed the theological significance of the role was not the central factor in the case.

They observed that the word “minister” was "rarely used by Catholics, Jews, Muslims, Hindus, or Buddhists.” and suggested that rather than Courts engaging in a debate about title or ordination, the real issue was safeguarding the autonomy of religious organizations to govern their internal affairs

Oklahoma and Sharia Law Ban - Part 2

2012-01-14T01:07:00.003Z

Back in November 2010 I Blogged about an amendment to the Constitution of Oklahoma which banned any recognition of Sharia Law in Oklahoma Courts even in cases involving with Arbitration or the application of Foreign Law.

I predicted in that Blog that the Ban would not stand up to legal and constitutional challenge and that is what appears to be the view of the US 10th Circuit Court of Appeals which in the case of Awad v Ziriax has continued a ban on the Amendment going into effect.

Muneer Awad, the executive director of the Council on American-Islamic Relations in Oklahoma, sued to block the law from taking effect, arguing that the Amendment violated his First Amendment rights.

A three-judge panel of the 10th Circuit agreed that on the face of it the Amendment did have an effect on Mr Awads Constitutional rights. Awad argued that the ban on Islamic law would likely affect every aspect of his life as well as the execution of his will after his death. The appeals court pointed out that Awad made a “strong showing” of potential harm.

Interestingly the Court also noted that the backers of the amendment acknowledged they did not know of any instance when an Oklahoma court applied Sharia law or used the legal precepts of other countries.

The case now returns to federal court in Oklahoma City for a full trial to determine the constitutionality of the proposed amendment.

Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission

2012-01-14T00:30:00.005Z

The US Supreme Court has issued an extremely important judgment in the case of Hosanna-Tabor Evangelical Lutheran Church vEqual Employment Opportunity Commission which dealt with the so called "Ministerial Exception" in the application of US Anti-Discrimination Employment legislation. It was unusual for the US Supreme, or indeed most supreme courts, in that it was a completely unanimous decision without even the smallest disent.

In simple terms the "Ministerial exception" is an application of the Ist Amendment to the US Constitution which prohibits the establishment of religion in the US or any prohibition in the free exercise of religion. The Courts have interpreted this to mean that US law and Government including Anti-discrimination law cannot be used to force Religious Organisations to act in a way that is contrary to their beliefs or to employ someone contrary to their beliefs. In this respect the US Courts have shown a greater awareness of the reality of the of quoted separation of Church and State. In Europe this is often interpreted simply as a one way process so that Churches should not be allowed to interfere in Government but in the US it is recognised that separation is a two way process and Government cannot interfere in religion.

The case itself was brought by a teacher at a Michigan school run by a Lutheran church when she was given a diagnosis of narcolepsy. She was however also classed as a "Minister" by the Lutheran Church. The Church said that she was sacked because she had threatened to go to Court with an allegation of Disability Discrimination. The beliefs of the Church was that disputes between members of the Church should be settled internally and not through outside litigation. The Supreme Court held that the Church was entitled to this belief and to enforce it internally.

The case may well be quoted in British cases involving religious freedom. Though I suspect that British Courts may be inclined to say that it is only relevant to the US and the 1st Amendment to the US Constitution the unequivocal nature of the decision may give it some moral if not precisely legal authority.

The main judgment was given by Chief Justice Roberts there were two additional concurring decisions one of which by Justice Alito with Justice Kagan concurring is worth quoting

"Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.” Roberts v. United States Jaycees, 468 U. S. 609, 619 (1984). In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own belief".

Is Polygamy a "Human Right" ? - Part 2

2011-11-24T14:41:00.003Z

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.

Catholic Bishops and Vicarious Liability for Priests

2011-11-10T21:00:00.003Z

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.

Put the Pope in the Dock - 2

2011-09-15T12:11:00.007+01:00

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

2011-09-11T22:20:00.006+01:00

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

GENERAL POINT IN RELATIONSHIP TO THE EHRC INTERVENTION

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”

MISAPPLICATION OF OF ARTICLE 9 BY BRITISH COURTS

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

RELIGIOUS SYMBOLS - EWEIDA and CHAPLIN

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.

LILLIAN LADELLE and MORAL COMPLICITY

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

REASONABLE ACCOMODATION

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.

Abortion and the Equality Act

2011-08-12T00:51:00.004+01:00

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

British Pregnancy Advisory Service v Secretary of State for Health [2011] EWHC 235 (Admin) for full details of the procedure)

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!

Jivraj v Hashmi - Religious Arbitration

2011-07-27T12:58:00.002+01:00

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

BACKGROUND TO THE APPEALS

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.

JUDGMENT

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.

REASONS FOR THE JUDGMENT
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

Should religious law be curbed ? - Guardian Debate

2011-06-24T08:59:00.005+01:00

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

Annual Lambeth Inter Faith Lecture

2011-06-16T14:49:00.004+01:00

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?"

Arbitration and Mediation Services (Equality) Bill

2011-06-12T17:38:00.006+01:00

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.

Whether its Murder or Your Right to Choose depends of when you do it

2011-06-10T17:03:00.004+01:00

A tragic case reported from Scotland

http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-13694156

http://www.scotland-judiciary.org.uk/8/767/HMA-V-INETA-DZINGUVIENE

where a new born baby boy was killed by his mother one day after birth. The mother got 15 years imprisonment and the judge described what she had done as "wicked" and "dreadful" (which of course it was). He also said

"Your victim was an innocent child, your own baby, who was no more than a few hours old when you ended his life by smothering him with clingfilm. As a newborn baby he was wholly defenceless and extremely vulnerable. He should have been protected and nurtured by you. Instead, you killed him and the jury determined, correctly, that this was murder."

The irony is that had she gone for an Abortion 3 months earlier then killing the baby would have been perfectly legal. You only need to modify the words of the judge very slightly to make them apply to every baby killed through Abortion

"Your victim was an innocent child, your own baby, when you ended his life. As an unborn baby he was wholly defenceless and extremely vulnerable. He should have been protected and nurtured by you. Instead, you killed him"

As a lawyer I understand the legal difference but as a human being I find it impossible to find any moral difference between what this woman did and what 250,000 women do in Britain every year. There is something sick and sad about a society where the difference between something being the crime of murder and being perfectly legal depends on whether the killing is done after birth or before it.

Cherfi v G4S Security Services Ltd

2011-06-03T12:08:00.003+01:00

The Employment Appeals Tribunal has handed down a decision in the case of Cherfi v G4S Security Services Ltd Bailii: UKEAT 0379_10_2405 which involved questions over the right of a Muslim Security Guard to leave his workplace on a Friday for afternoon prayers in a Mosque.

Mr Cherfi, a Muslim, was employed as a security guard by G4S Security Services Ltd (G4S). From 2005, he worked at a client's site in Highgate. He regularly left the site on Friday lunchtimes to attend Finsbury Park Mosque. In October 2008, G4S told Mr Cherfi that he could no longer leave the Highgate site at lunchtimes, as G4S was contractually obliged to ensure that a specified number of security guards were present throughout operating hours.

G4S offered to change Mr Cherfi's contract to a Monday to Thursday pattern with the option of him working either on a Saturday or a Sunday instead of Friday. Mr Cherfi was not prepared to work at the weekend and instead stopped working Fridays, taking them off as sick leave, annual leave or authorised unpaid leave. In March 2009, G4S told Mr Cherfi that this arrangement could not continue.

Mr Cherfi brought a claim for indirect religious discrimination under Under regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 (now replaced by sections 10 and 19 of the Equality Act 2010)

He claimed that G4S's requirement that security guards be on site at Friday lunchtimes placed Muslims at a particular disadvantage. Watford employment tribunal rejected his claim, deciding that the requirement was objectively justified and a proportionate means of achieving the legitimate aim of meeting the employer's operational needs and that decision by the Tribunal was upheld by the EAT.

The Claimant relied on the 2005 case of Cross and others v British Airways plc as authority that economic considerations alone could not justify a discriminatory policy whilst the defendant relied on the 2010 case of Woodcock v Cumbria Primary Care Trust as authority that economic considerations could of themselves justify a discriminatory paractice. In this case if the requisite number of guards were not permanently on site the employer would be in breach of contract to its customer with consequent cost consequences.

The EAT considered that the financial implications of allowing the employee to leave the premises on a Friday were not the only factor in the Employers decision but, following Woodcock, it held that even if financial implications was the only factor that was sufficient to make the discriminatory policy reasonable and proportionate.

From a religious discrimination point of view the main factor that comes over is that G4S did try to accommodate Mr Cherfi in every possible way by offering him the option of working on a Saturday or a Sunday in place of working on a Friday which clearly showed a willingness to make reasonable adjustments to meet his religious needs. Once he turned down their suggestions it was very difficult to see what else the employer could reasonably have done.

Catholic League v San Francisco - End of the Line

2011-05-10T10:14:00.003+01:00

The US Supreme Court has denied Certiorari (ie refused to hear) an Appeal against the decision of the 9th Circuit Court of Appeals involving an Anti-Catholic (or anti-Vatican depending on your point of view) resolution by the City Council of San Francisco.

I blogged on this case 12 December 2010 and the details can be read there.

Belief in the BBC is a Religion ??

2011-05-09T17:18:00.003+01:00

Sometimes cases are reported where I instinctively check my diary to make sure that it isn't April Fools Day. I felt this when I read that an Employment Tribunal had decided that believing in the BBC and that
“public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion”
is equivalent to a religious belief.

It is important to stress that the Claimant in this case has not won his case all that has happened is that an ET has decided that he can bring the case on the basis of his, alleged, belief in the importance of the BBC's puplic role.

This case and other like it are the direct result of a change to Religious Discrimination law which was brought into effect back in th Equality Act 2006 section 77(1) changed the earlier definition of Religious Discrimination set out in reg 2(1) of the Employment Equality (Religion or Belief ) Regulations 2003 which had said
“religion or belief” means any religion, religious belief, or similar philosophical belief
until this was changed by the 2006 Act to read
(a)“religion” means any religion,
(b)“belief” means any religious or philosophical belief,
(c)a reference to religion includes a reference to lack of religion, and
(d)a reference to belief includes a reference to lack of belief.”

Why this change was made is something that was never really explained in Parliament indeed during the debate it was indicated that the change would have no real significance which does beg the question as to why the change was made in the first place.

Home Office MinisterPaul Goggins MP said (Hansard 6 December 2005 Col 145)
'We know from case law that religion has to be consistent with human dignity; it must have a cogency, seriousness and sense of cohesion about a particular series and set of beliefs. We would expect a philosophical belief to betray the same hallmarks, although it does not revolve around belief in a particular deity'

Home Office Minister Baroness Scotland similarly said (Hansard 13 July 2005 Col 1109)
'The intention behind the wording in Part 2 is identical to that in the employment regulations. However, in drafting Part 2, it was felt that the word 'similar' added nothing and was, therefore, redundant. This is because the term 'philosophical belief' will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief. Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of Part 2 of the Bill, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not—I hope I do not give any offence to anyone present in the Chamber—would be support of a political party or a belief in the supreme nature of the Jedi Knights.'

The references to religion having to be 'consistent with human dignity' is a commonmisreading of the European Court of Human Rights case of Cosans v UK ECtHR 25/Feb/82 where the court was not considering the meaning of the words 'religion' or 'religious belief' but was considering the meaning of the phrase 'philosophical convictions'
' In its ordinary meaning the word 'convictions' .....denotes views that attain a certain level of cogency, seriousness, cohesion and importance. …As regards the adjective 'philosophical', it is not capable of exhaustive definition ……the expression 'philosophical convictions' in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a 'democratic society' ….and are not incompatible with human dignity'

However this is the definition that has been adopted by the UK Courts when looking at the issue of "philosophical belief" for the purposes of Discrimination Law however the decision by the Tribunal does seem to ignore the debate that took place in Parliament in particular where Paul Goggins said(Hansard 6 December 2005 Col 146)
'philosophical belief is not limitless; for example, it would not be possible to claim that belief in the supremacy of a certain football team qualified as a religion or philosophical belief. Nor, indeed, could that claim be made about belief in the principles of a political party,

Believing in the "mission" of the BBC is coming perilously close to belief in a political party or a political ideology and Parliament never intended such beliefs to be protected by the law.

A Catholic Momarch

2011-04-26T14:58:00.003+01:00

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

Catholic Care v Charity Commission

2011-04-26T14:11:00.005+01:00

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).

Burning the Koran

2011-04-11T19:48:00.005+01:00

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.

Religious Tribunals and Discrimination Law

2011-04-07T20:25:00.003+01:00

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

Communists are Not Fascists they are Communists

2011-03-29T15:02:00.003+01:00

I know this is completely off topic for this Blog but I just had to rant about it.

On BBC radio4 "The World this Weekend" on Sunday Mr Kit Malthouse a Deputy Mayor of London was interviewed about the damage and disruption caused in London by so called "demonstrators" who attached themselves to the peaceful and lawful protest march against government expenditure cuts.

He finished his talk by referring to the the troublemakers as a "group of fascist agitators" You can listen to it at http://www.bbc.co.uk/iplayer/console/b00zqc43/The_World_This_Weekend_27_03_2011 at point 10.55 into the programme.

It really irritated me because whatever the marchers were they were definitely NOT "Fascists". I did see a couple on TV who were carrying the old Soviet Flag so why not call them "Communists" or "Anarchists" why call them "Fascists".

I suppose it all ties in with a general tendency today to use "Fascist" as an all encompassing political insult for anyone you disagree with however I also think it ties in with a general tendency to forget about or to excuse communism and the terrible things it did.

A couple of years ago I lectured on Human Rights at a local university and gave a general historical background to the European Convention and I talked about the Holocaust, naturally, but I also talked about Communism and Stalin. What I discovered is that the students, who were all late teens early 20's had all been taught about Fascism, Hitler and the Holocaust but they knew absolutely nothing about Communism, Stalin or the Gulags. I fear that we have a generation who are incapable of understanding that the "left" ever did anything wrong in History so when anything is done that is bad it has to be blamed on the right and the offenders branded as "fascists" even when that is clearly the last thing they are.

Church Volunteers and Employees

2011-03-25T17:55:00.005Z

There have been two interesting cases recently dealing with the separate but linked issues of the law relating to Volunteers in religious organisations and to ministers of religion.

In X v Mid Sussex Citizens Advice Bureau & Ors [2011] EWCA Civ 28 the Court of Appeal rejected the suggestion that "Volunteers" were covered by the Anti-Discrimination provisions of the Equality Act 2010. (The case itself dealt with the provisions of EU Anti-Discrimination Directive but its findings would have affected the application of the 2010 Act)

The case involved a volunteer at a Citizens Advice Bureau and whether she was protected under the (now repealed) Disability Discrimination Act however it was common ground that the decision would involve all volunteers for any voluntary organisation and would apply to all types of Discrimination covered by the 2010 Act. What the Court of Appeal decided was that the Directive, and hence the Act, only applied to employees and not volunteers.

This decision is of particular significance to all religious organisations because of the large number of volunteers that are always involved with churches, synagogues, mosques, gurdwaras temples etc. If the Equality Act had applied to volunteers then these organisations would have been faced with a potential bureaucratic nightmare as they would have to ensure that every volunteer post was filled in accordance with equality guidelines with the possibility of facing Tribunal claims from disaffected parishioners who felt that they had been overlooked for appointment to a voluntary post. The fact that the law does not apply to volunteers lifts this potential threat from all voluntary organisations and allows them to get on with their primary role

In Moore v The President Of The Methodist Conference BAILII:[2010] UKEAT 0219_10_1503 the Employment Appeals Tribunal decided that a Methodist Minister was an Employee for the purposes of Employment Law, in this case a claim for unfair dismissal. The EAT applied an earlier House of Lords case Percy v. Church of Scotland [2005] UKHL 73 in which the House of Lords decided that a Church of Scotland Minister was an employee

Prior to Percy the general assumption in law was that religious ministers, of all denominations, were office holders rather than employees and so were not protected under unfair dismissal and/or discrimination law. In Percy however the House of Lords decided that, on the specific facts, the Minister in the case was an employee and the same decision was made in Moore as regards a Methodist minister.

How far this principle will extend is difficult to determine. It is possible that Denominations which have a very sacramental view of the status and role of the Clergy, such as the Catholic and Orthodox Churches, will continue to be able to claim that their clergy are "office holders" rather than employees. However for Free Church Ministers, Rabbi's and Immans the position may be different and they may be held to be employees of their respective congregations should they decide to sue for unfair dismissal or discrimination.

Italian Crucifix Case - Grand Chamber Judgment

2011-03-21T18:09:00.003Z

The Grand Chamber (in effect the Appeals Court) of the European Court of Human Rights in Lautsi v Italy 2011 has overruled the earlier decision of the Court in the case of Lautsi v Italy 2009.

I had blogged previously about the 2009 decision on 5 November 2009, 7 November 2009 and 13 April 2010 but for those who have missed this saga the case involved a Mrs Lautsi a Finnish Lady who had moved to Italy and then complained about the presence of Crucifixes in Italian State Schools which is a bit like moving to Finland and then complaining about the snow. In the 2009 decision the ECtHR decided that the presence of the Crucifix interfered with Mrs Lautsi's childrens freedom of religion as guaranteed by Article 9 of the European Convention on Human Rights and Protocol 2 of the Convention relating to the rights of parents to have their children educated in accordance with the parents philosophical and religious beliefs

As I predicted in my earlier Blogs the ECtHR based its decision on the concept of the "margin of appreciation" and decided that it was for individual countries to make these decisions so that just as France is free to ban all religious symbols from state schools so Italy is free to put religious symbols in state schools. In the UK context this is a significant basis for the decision. When UK Courts apply the Human Rights Act 1998 which incorporates the European Convention into UK law they apply the "margin of appreciation" so as to give that margin to Government and public bodies. The fact that the display of the Crucifix, or indeed any other form of religious symbol, is governed by the "margin of appreciation" will go a long way to free local and central government, schools etc from the danger of legal cases being brought to ban Nativity Displays, prayers at remembrance parades etc.

Unusually for the ECtHR there were a number of separate concurring judgments and I feel that some of them deserve quoting in detail because they do pick up and question the often unquestioned assumption that Secularism is the same as religious neutrality

"JUDGE BONELLO
1.1 A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that “customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals”.
1.2 A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality

2.5 Freedom of religion is not secularism. Freedom of religion is not the separation of Church and State. Freedom of religion is not religious equidistance – all seductive notions, but of which no one has so far appointed this Court to be the custodian. In Europe, secularism is optional, freedom of religion is not.
2.6 Freedom of religion, and freedom from religion, in substance, consist in the rights to profess freely any religion of the individual's choice, the right to freely change one's religion, the right not to embrace any religion at all, and the right to manifest one's religion by means of belief, worship, teaching and observance. Here the Convention catalogue grinds to a halt, well short of the promotion of any State secularism."

"JUDGE POWER
Neutrality requires a pluralist approach on the part of the State, not a secularist one. It encourages respect for all world views rather than a preference for one. To my mind, the Chamber Judgment was striking in its failure to recognise that secularism (which was the applicant's preferred belief or world view) was, in itself, one ideology among others. A preference for secularism over alternative world views—whether religious, philosophical or otherwise—is not a neutral option. The Convention requires that respect be given to the first applicant's convictions insofar as the education and teaching of her children was concerned. It does not require a preferential option for and endorsement of those convictions over and above all others.........To prohibit in public schools, regardless of the wishes of the body politic, the display of a symbol representative of that (or indeed any other religious) tradition and to require of the State that it pursues not a pluralist but a secularist agenda, risks venturing towards the territory of intolerance – a concept that is contrary to the values of the Convention."

Destroying the Meaning of Marriage

2011-03-12T22:26:00.004Z

This is a reproduction of an Article I had published in the March 3rd issue of The Catholic Herald

“Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others” are the first words in the law report of the 1866 case of Hyde v Hyde when a Court in England was asked to consider the legal validity of a potentially polygamous Mormon marriage, much the same conclusion was reached by the US Supreme Court in the 1878 case of Reynolds v USA which also involved polygamous Mormon marriage.

Today mainstream Mormons reject polygamy but the question raised in these 19^th Century cases “what is marriage ?” is once again a live issue with the announcement by the government that it is considering legalising same sex marriage and the unequivocal rejection of the idea by Archbishop Peter Smith spokesman for the English and Welsh Catholic Bishops.

As Archbishop Smith has pointed out is “Marriage does not belong to the State any more than it belongs to the Church. It is a fundamental human institution rooted in human nature itself.” and that is borne out by the legal history of marriage itself. The Marriage Act 1949 which regulates the registration of Marriage in England and Wales does not contain any definition of what marriage is because that would have been regarded as an unnecessary statement of the blindingly obvious marriage was not created by the 1949 Act or indeed any earlier statute because marriage has always existed. All that Parliament did in 1949 and earlier Acts was to set out the legal formalities for the registration of an already existing human institution; s1(1) of the Civil Partnership Act 2004 by contrast does define civil partnerships as “a relationship between two people of the same sex “ because the 2004 Act was creating an entirely new legal institution.

Proponents of Same Sex marriage, in particular the omnipresent Peter Tatchell repetitively compare the ban on same sex marriage to bans on inter-racial marriage in the American South or South African Apartheid but this is a simplistic and ignorant argument. In both Dixie and SA the idea was to prevent 'miscegenation' ie racial mixing and so the laws did not merely prevent inter-racial marriage but also made inter-racial sex and inter-racial cohabitation criminal offences.

In view of the accusations of ignorant bigotry which are routinely thrown at Christian organisations in contrast to scientific rationalism it is perhaps worth remembering that much of the justification for banning inter-racial marriage was inspired by Eugenics 'scientists' inspired by Darwin. The 1924 Racial Integrity Act in Virginia for example was passed in tandem with an Act for “the compulsory sterilization of persons deemed to be "feebleminded," including the "insane, idiotic, imbecile, or epileptic.”

More fundamentally segregationist laws did not change the nature of marriage as involving a man and a woman what they did was to specify on racial grounds which woman a man could or could not marry and vice versa. This was the reason why American miscegenation laws were eventually ended by the US Supreme Court in the 1969 case of Loving v Virginia. In Britain by contrast mixed-race marriage has never been illegal and indeed was never illegal throughout the British Empire. But regardless of whether mixed race marriage was legal or illegal the fundamental nature of marriage as involving a man and a woman was never in question and that is why the comparison of same-sex to mixed-race marriage is spurious.

So the Church therefore does have a legitimate right to object to suggestions that the fundamental human institution of marriage should be redefined by Parliament but it is also right to be concerned as to the implications for religious freedom of any redefinition of marriage or any attempt to allow civil partnerships to be celebrated in religious buildings and as part of any religious ceremony.

There are two proposals currently being considered by Government, firstly to allow same-sex civil partnerships to be celebrated in religious buildings in accordance with religious rites and secondly to redefine marriage to include same sex relationships. At present civil partnerships are, as their name implies, purely civil with no religious element involved though, as Archbishop Peter pointed out, there is nothing stopping any religious organisation giving a blessing or other religious ceremony separate from the formal legal “civil” ceremony. Quakers, Unitarians and Liberal Synagogues do this already but they have asked that they be allowed to hold the formal legal part of civil partnership at the same time and in the same premises as the religious ceremony. The Church of England and Catholic Church both oppose this suggestion

The problem with both these suggested changes is that in the present era of Human Rights and Anti-Discrimination laws once something is allowed it can become illegal to refuse to provide it

If Churches, Synagogues, Mosques etc are allowed to perform same sex marriages or civil partnerships they could easily find themselves being sued for “Discrimination” if they refuse to perform them. Any legislation would, no doubt, say that no church etc would be obliged to perform same-sex ceremonies but any such guarantees could be legally challenged and are not likely to be worth the paper they are written on.

In a recent case concerning Marriage Commissioners in Saskatchewan the Canadian Courts struck down provisions in their Marriage legislation that protected Marriage Commissioners who for reasons of conscience did not want to perform same-sex marriages.. In an Orwellian decision this recognition of freedom of conscience was declared to be contrary to the Canadian Charter of Rights and Fundamental Freedoms. The Charter is very similar to Britains Human Rights Act and therefore it is quite possible that the UK Courts would use the same logic as the Canadian Courts in order to strike down any conscience protections given to religious organisations that did not want to perform same-sex ceremonies. Arguments about religious freedom are not likely to carry much weight because in the 2009 case of Ladelle the Court of Appeal declared that religious objections to same-sex relationships were not a “core part” of Christian belief and so were not protected under the Human Rights Act.

I began this article by referring to the 19^th Century legal cases involving Mormon polygamy which were dealt with by the Courts on the basis of a robust understanding of marriage as the union of one man and one woman. In 2003 the Canadian Courts rejected this definition as discriminatory and in consequence same sex marriage was legalised in Canada. Today in British Columbia a fundamentalist Mormon Polygamist is defending himself on Bigamy charges by arguing that the Bigamy law is discriminatory. It is quite possible that he will win in which case Canada will have legalised, same sex marriage, polygamy, polyandry and polyamory. David Cameron has said that he regards marriage as fundamental to society but he and the government need to recognise once they open the Pandora’s box of trying to redefine marriage they will end up destroying it

Johns v Derby Council - Christian Foster Carers Case

2011-02-28T18:29:00.003Z

The case of Johns and Johns v Derby City Council [2011] EWHC 375 (Admin) is yet another round of the in the battle between Christian Rights and Homosexual Equality and follows arguments familiar in McFarlane v Relate BAILII: [2010] EWCA Civ B1 and Ladelle v London Borough of Islington [2009] EWCA Civ 1357.

The case involved a Christian couple who had applied to be foster carers in Derby but who, when visited by social workers, were perceived to be negative when asked how they would deal with questions about homosexuality or how they would deal with a homosexual child. However, as the Court itself noted no final decision had been made when the case was launched. It is clear that for that reason alone they considered the claim to be premature; the basis for a Judicial Review is that a decision by a public body is irrational and since no decision had yet been made it could hardly be said that any decision was irrational.

It is also clear from the judgment itself that the Court was pretty fed up with what is saw as the regurgitation of arguments which had been dealt with in the Ladelle and Mcfarlane cases. They were also critical in paras 32-34 of what they describe as "extravagant rhetoric" and in general the claims made about the significance of the case and the actions of Derby Council

Paras 38-39 are worth quoting in full

"38: Although historically this country is part of the Christian west, and although it
has an established church which is Christian, there have been enormous
changes in the social and religious life of our country over the last century.
Our society is now pluralistic and largely secular. But one aspect of its
pluralism is that we also now live in a multi-cultural community of many faiths.
One of the paradoxes of our lives is that we live in a society which has at one
and the same time become both increasingly secular but also increasingly
diverse in religious affiliation.
39: We sit as secular judges serving a multi-cultural community of many faiths.
We are sworn (we quote the judicial oath) to “do right to all manner of people
after the laws and usages of this realm, without fear or favour, affection or ill
will.” But the laws and usages of the realm do not include Christianity, in
whatever form. The aphorism that ‘Christianity is part of the common law of
England’ is mere rhetoric; at least since the decision of the House of Lords in
Bowman v Secular Society Limited [1917] AC 406 it has been impossible to
contend that it is law. "

All in all this does appear to be a case that should not have been brought and which, from the point of view of orthodox Christians has done more harm than good

Christian Bed and Breakfast Establishments

2011-01-20T22:47:00.005Z

The owners of a Bed and Breakfast establishment in Cornwall have been sucessfully sued for a breach of the Sexual Orientation Regulations 2007. I do not have a transcript of the Court judgment and so have to rely on the news reports Telegraph, Guardian, Mail, BBC for the facts.

(PS ADDITION I am grateful to Sam Sarmiento for pointing me in the direction of a copy of the Judgment on the Judiciary Website. It is unusual to be able to obtain copies of County Court Judgments so it is good that the decision has been taken to publish Judgments in County Court cases such as this one where there is considerable public interest in the case)

The result was perhaps not too surprising in view of the general way sexual orientation discrimination law is working these days however the fact that the Judge has given leave to appeal does indicate that he considers the legal position to be unclear or at least arguable.

The fact is that the couple were not actually refused a room they were refused a room with a double bed and that is a policy which the Christian B&B owners have also applied to heterosexxual couples who were not married. The relevant point in this case seems to be the fact that the Gay couple were in a Civil Partnership and under reg 3(4) of the regulations Civil Partners shoudl be treated on the same basis as married couples (at least that is how the regulation is usually interpreted it is not that clearly worded )

Conversely under reg 6 Discrimination is legal when applied to premises where the owner (landlord) also lives as is the case here so there is room for an appeal court to reach a different decision to the County Court Judge who tried the case.

I have a couple of points relating to proportionality which is should discrimination law apply at all to such a small business as a B&B. The essence of any small or family run business is that it is highly personal and individualist indeed that is why people go to B&B's rather than main hotels. If as a society we want individualism and difference then surely we need to allow the freedom to be different.

As for thos who oppose any freedom for discrimination be referring to racial discrimination in Nazi germany or the American South or South Africa but I would disagree with these comparisons. The problem in these societies was not that people were allowed to discriminate but that they were obliged to discriminate by the laws applying in those countries. It seems to me that society should allow discrimination to be legal at least for small businesses and private associations even if society disaproves of that discrimination.

Religious Freedom Day, 2011

2011-01-15T11:39:00.005Z

January 14th has been declared by President Obama as Americas "Religious Freedom Day" in honour of the passing of the Virginia Statute for Religious Freedom drafted by Thomas Jefferson. Though of course only relevant to the Law in Virginia it has been hugely influential in the US Supreme Court cases considering the 1st amendment to the US Constitution and I do see it as one of those documents which are worthy of being considered and followed by other countries.

I annex a copy of the Statute below and it is worthy of notice that the Statute justifies religious freedom by reliance on the will of God ie it is a Statute defending Freedom of Religion and not Freedom From Religion which seems to be the way that modern Courts and Legislators are going. I also emphasise those sections which I believe the most important

"Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;

that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;

that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind;

that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it;

that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;

and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:

Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

And though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right."

Saskatchewan Marriage Commissioners

2011-01-11T20:01:00.004Z

The Saskatchewan Court of Appeal has issued a decision in the case of Marriage Commissioners Appointed Under The Marriage Act (Re), 2011 SKCA 3. I have only had a brief opportunity to read the judgment and will comment on it detail later but in general terms it appears to follow the same logic as the English case of Ladele v London Borough of Islington [2009] EWCA Civ 1357

The Court has decided that proposed legislative amendments to the Saskatchewan Marriage Act 1995 which would have allowed Saskatchewan’s marriage commissioners to refuse to perform same-sex marriages on religious grounds are contrary to Saskatchewan Anti Discrimination Law and the Canadian Charter of Rights and Freedoms. As I blogged back in October 2009 the Ontario Canadian Supreme Court in the 2004 case of Halpern et al. v. Canada had decided that the Common Law definition of marriage as between one man and one woman was not consistent with the Charter and subsequently Same Sex Marriage had become legal throughout Canada though the specific legislation remains the responsibility of the individual provinces in Canada.

The Saskatchewan government had proposed two potential legislative amendments to the Marriage Act in order to deal with situations where some marriage commissioners were called before the Saskatchewan Human Rights Commission or the Courts for refusing to perform same-sex marriages: one amendment would have permitted marriage commissioners appointed before November 5, 2004 to refuse to solemnize a marriage contrary to their religious beliefs, and a second would have allowed any marriage commissioner, no matter when they were appointed, the same right.

The court said that its decision was based on section 15(1) of the Charter of Rights and Freedoms which prohibits discrimination based on characteristics such as race and sex. Though the Charter makes no mention of sexual orientation, the courts have nevertheless read sexual orientation into this section. The court said that a law empowering marriage commissioners to deny their services to homosexual individuals would violate section 15(1) as it would treat them differently than other people and would do so in a discriminatory fashion based on their sexual orientation.

The Court claimed that allowing marriage commissioners to withhold their services because of personal religious convictions would undercut the fundamental principle that government services must be provided to all members of the public on an impartial and non-discriminatory basis.

What that judgment however seems to ignore, as did Ladele, the possibility of allowing individual government employees a right of conscientious objection so long as the "service" was provided by someone. On a personal note I find it somewhat Orwellian to use a "Charter of Rights and Freedoms" in order to justify forcing people to do something against their conscience and to say that that even a Democratically elected Legislature does not have the right to give people freedom to refuse to perform an action. That is not a Charter of Rights and Freedom so much as a Charter of Coercion and is an object lesson in Judicial activism exercising a corrosive influence on democracy and freedom.

Have yourself a multicultural little Christmas

2010-12-22T17:07:00.006Z

In view of the fact that most Schools are no longer putting on a Nativity Play in order to avoid “giving offence” to other religions the following Nativity Play has been written

THE POLITICALLY CORRECT NATIVITY

(or Have yourself a multicultural little Christmas)

Characters: Mary and an Angel.
(Please note that the role of the Angel is Non Gender specific and therefore the person playing the role must be chosen in accordance with an approved diversity procedure)

(Mary is sitting on the floor crosslegged with her eyes shut and her hands on her knees palms up. She is chanting)

MARY: Ohmm, Ohmm, Ohmm,

(The Angel enters Stage Left (or Stage Right depending on cultural preferences)

ANGEL: Mary

(Mary stands up startled, she adjusts her Hijab to cover her face and speaks)

MARY: Who are you ? You interrupted me when I was allowing my Kharma to flow forth and develop my Krishna Consciousness

ANGEL: I am Ahura Mazda, Lord of Light and a messenger of Allah. I have come to tell you that you are to have a child and in his honour every year children everywhere will be given presents regardless of their race, colour, creed, sexual orientation or transgender inclinations

MARY: But how can this be, I am a good Jewish Girl, though I hasten to add not a member of the international Zionist conspiracy or involved in the suppression of the legitimate aspirations of the Palestinian people

ANGEL: All things are possible to Allah. He has the power to turn Teddy bears into Criminals or Global Warming into snowy blizzards and he allows apparently rational people to believe that Sweden is run by the CIA so this is easy. The child will be born just after the festival of Divalli; farewell Mary and may the force be with you.

MARY: Wait, you have not told me what the name of the baby will be

(The Angel thinks for a minute)

ANGEL: It’s funny you should say that but with everything else that’s going on these days I’ve completely forgotten who the baby is

THE END ?

And to my readers (or for all I know 'my reader')

My best wishes for Christmas and for 2011 Anno Domini.

Irish Abortion case 2

2010-12-20T13:43:00.005Z

I have had a proper chance to read this decision see earlier Blog below and am even more puzzled than I was before as to what right or jurisdiction the ECHR had to make the decision it did.

The main part of the decision relating to the claimant C was that the Irish Government has not brought in legislation or guidance to allow Doctors to properly advise women who seek an Abortion when their life may be endangered by pregnancy. In the case of A.G. v. X [1992] BAILII:IESC 1 the Irish Supreme Court decided that women in that situation could obtain an Abortion in accordance with the
"and with due regard to the equal right to life of the mother"
wording within article 40.3.3 of the Irish Constitution

Assuming, for the sake of the argument, that the ECHR is correct in deciding that the Irish State has not properly implemented the 'X' case how does that give the ECHR jurisdiction to find a breach of Article 8 of the Convention ? If there is no right to an Abortion under Article 8 then at that stage the jurisdiction of the ECHR ends; the ECHR does not have the jurisdiction to deal with possible breaches of the Irish Constitution

There is also a broader issue arising from the the Judgment which provides a dangerous power for the ECHR to ultimately decide that Abortion is a "Human Right". Paras 233 - 238 read as follows

233. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.

234. However, the question remains whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.
The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26), the Convention being considered a “living instrument” to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention (Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 41; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 60; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 102; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I and Christine Goodwin v. the United Kingdom [GC], cited above, § 85).

235. In the present case, and contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life. Certain States have in recent years extended the grounds on which abortion can be obtained (see paragraph 112 above). Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Given this consensus amongst a substantial majority of the Contracting States, it is not necessary to look further to international trends and views which the first two applicants and certain of the third parties argued also leant in favour of broader access to abortion.

236. However, the Court does not consider that this consensus decisively narrows the broad margin of appreciation of the State.

237. Of central importance is the finding in the above-cited Vo case, referred to above, that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see the review of the Convention case law at paragraphs 75-80 in the above-cited Vo v. France [GC] judgment), the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention (Tyrer v. the United Kingdom, § 31; and Vo v. France [GC], § 82, both cited above).

238. It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a State’s Convention obligations and, given the Court’s responsibility under Article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved (Open Door, § 68). A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre-natal life or on the basis that the expectant mother’s right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the Contracting States, as the Government maintained relying on certain international declarations (paragraph 187 above). However, and as explained above, the Court must decide on the compatibility with Article 8 of the Convention of the Irish State’s prohibition of abortion on health and well-being grounds on the basis of the above-described fair balance test to which a broad margin of appreciation is applicable.

The notion that the interpretation of the Convention can evolve and can be based on a developing "consensus" within Europe, the idea that the ECHR can say that its power to interpret a Convention that does not once mention Abortion is such that
"Nor is the regulation of abortion rights solely a matter for the Contracting States"
is wholly inimical to the concept of Democracy and the rule of Law. Article 40.3.3 of the Irish Constitution was passed by a referendum of the Irish people following a full debate and yet apparently that referendum result can be overturned by a group of unelected Judges applying their concept of a European consensus.

The rule of law depends on Judges applying legal rules whether they like them or not, once the law is at the whim of Judges then we no longer have the rule of law.

Most of the debate on this case seems to turn on whether the commentators agree or disagree with Abortion but I would suggest that there is another principle at stake and perhaps a more important principle. Are decisions on these fundamental moral questions going to be decided by European nations democratically or are they going to be imposed on Europe by an ECHR which is neither accountable to the peoples of Europe or removable by them

Irish Abortion case

2010-12-16T11:56:00.003Z

I am just off on a journey so apologies for this rushed Blog.

The European Court of Human Rights has just delivered a Grand Chamber judgment in the case of A. B. and C. v. Ireland. See PRESS RELEASE and JUDGMENT
re the facts in each case. Essentially the 3 women were arguing that the Irish Constitution article 40.3.3

"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right"

violated their rights to a private life under Article 8 of the European Convention on Human Rights
Article 8 - Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Court held that there had been no violation of Article 8 of the European Convention on Human Rights (right to private and family life) in respect of A and B, and unanimously, that there had been a violation of Article 8 in respect of C who was suffering from cancer. The peculiarity of the decision is that the European Court held that C could not access her rights to an Abortion (because her life was in danger) under the Irish Constitution 40.3.3.

The question I pose is
"What gives the European Court of Human Rights the right to adjudicate on the provisions of the Irish Constitution ? Once the Court had decided that the European Convention does not give a right to an Abortion that should have been the end of the matter. Deciding on the interpretation of the Irish Constitution is the job of the Irish Supreme Court not the European Court of Human Rights

Catholic League v San Francisco

2010-12-12T16:09:00.006Z

The judgment of the US 9th Circuit Court of Appeals in the case of Catholic League v San Francisco makes interesting reading. In this case the Catholic League which is an organisation defending Catholic freedom in the US sued the City of San Francisco over a resolution passed by the Board of Supervisors (in effect the City Council) of San Francisco.

The City of San Francisco has a long record of supporting Gay Rights including same sex marriage and same sex adoption. Following a statement by Cardinal William Levada the head of the Vatican Congregation for the Doctrine of the Faith which condemned same sex adoption and stated that Catholic Adoption Agencies should not co-operate in any way with it the SF Board of Supervisors passed a lengthy resolution (no 168-06 It can be read on p4 of the Judgment). This resolution firmly disagreed with the views of Cardinal Levada and called on him to withdraw and on the present Archbishop of San Francisco, Archbishop Niederauer, to defy the Catholic Churches teaching on same sex adoption

WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada;
now, therefore, be it RESOLVED,
That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

The Catholic League argued that this resolution breached the 1st Amendment to the US Constitution which prevents an "establishment of religion". It was argued by the League that just as and, as the 1st Amendment prevents government in the US from endorsing any particular religion or religious group so it also prevents government from criticising any particular religion or religious group.

Much of the case revolved around the question of "standing". Clearly either Archbishop Niederauer or Cardinal Levada could claim that the resolution affected them but the Court had to decide whether the 2 Catholic League members in whose name the case was brought could claim that it affected them in their personal capacity as Catholics. The Court decided, by a bare majority that they did have standing.

The Court also by a majority decided that the resolution did not affect the rights of Catholics under the 1st Amendment. The minority dissenting view was set out in the judgment of Judge Kleinfield (p17 of PDF) who held that
government has no legitimate role under the Establishment Clause in judging the religious beliefs of the people — either by praise or denunciation.

The majority view was set out in the judgment of Judge Silverman (p26 of PDF) who said
Government speech or conduct violates the Establishment Clause’s neutrality-only requirement when it: (1) has a predominantly religious purpose; (2) has a principal or primary effect of advancing or inhibiting religion; or (3) fosters excessive entanglement with religion. .......It [the resolution] was an isolated, non-binding expression of the Board of Supervisors’ opinion on a secular matter, which the plaintiffs have not alleged even potentially interfered with the inner workings of the Catholic Church......We would have a different case on our hands had the defendants called upon Cardinal Levada to recant his views on transubstantiation, or had urged Orthodox Jews to abandon the laws of kashrut, or Mormons their taboo of alcohol. Those matters of religious dogma are not within the secular arena in the way that same-sex marriage and adoption are

An interesting point for me, as a non US lawyer, was that nobody referred to the right of free expression which is also part of the 1st Amendment since it does seem to me that the SF resolution was an expression of opinion by the SF Board of Supervisors and therefore surely it too was protected by the 1st Amendment on those grounds. I suppose that since the Court held that the establishment clause in the 1st Amendment was not violated they did not need to go on to consider freedom of speech issues.

On a personal basis I agree with the Court on their judgment (no doubt they will be heartily relieved to know that !). Whilst I can understand the annoyance of the Catholic League with what the SF resolution said the fact is that the biggest threat Christianity faces in the west is the restriction on freedom to express unpopular views and therefore supporting freedom of expression is important even when you disagree with what is expressed.

On a second personal point I do take issue with the SF resolution when it refers to the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition
that really is just a nasty attempt to blacken by association. The inquisition ceased to exist in 1908 so why over 100 years later refer to it when dealing with what a modern department has said; nobody refers to Canada (formerly known as British North America) or The Ministry of Defence (formerly known as the War Office). It was a childish remark by the SF Board but, as I have already mentioned, one protected by the 1st Amendment

Oklahoma and Sharia Law Ban

2010-11-29T10:15:00.003Z

Say what you like about America but its political system does allow the public to get involved in debate and decision making in a way that is very difficult this side of the Atlantic. One of the latest examples of this was the decision by citizens of Oklahoma to amend their State Constitution so as to ban Sharia law.

The legal background to the wording of the amendment makes interesting reading because Oklahoma law requires that any proposed amendment to the State Constitution needs to be accompanied by an explanation of the amendment and its purpose. The Ballot as put to the Voters of Oklahoma read as follows.

PRELIMINARY BALLOT TITLE FOR STATE QUESTION NO. 755

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties. Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

"C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression. "

After being passed the Amendment was immediately the subject of a legal case by the Council on American Islamic Relations and that legal case will no doubt drag on for several years. In the meantime the Constitutional Amendment has been put on hold and does not form part of the Oklahoma Constitution.

Most of the arguments against the Oklahoma Amendment have concentrated on the line that it is a breach of the 1st Amendment to the US Constitution which says
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

There is a similar provision in Article 1.2 of the Oklahoma Constitution which says
§ 2. Religious liberty - Polygamous or plural marriages.
Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.

The question for the Courts will undoubtedly be whether the proposed amendment amounts to a defacto interference with the "free exercise of religion" and/or "a religious test for the exercise of civil or political rights". It seems to me that the amendment as passed clearly does that in so far as it prevents the use of Sharia law even with regard to purely internal regulation of Muslim organisations or the personal use of Sharia in Arbitration. However I suspect that the amendment can be struck down on grounds that do not require the Courts to look to closely at the religious aspects of Sharia. The word in the amendment provided the law of the other state does not include Sharia Law, in making judicial decisions. can be argued to be in breach of Article IV.1 of the US Constitution which requires that "full faith and credit shall be given in each state to the ... judicial proceedings of every other state" ie if another State recognises Sharia in part of its law Oklahoma has no right to disagree. Furthermore the refusal to recognise International law goes against several references in the US Constitution to the "law of nations" as being recognised by the Constitution.

It will be interesting to see how the case develops but legally speaking I do not give much credence to the survival of the amendment as passed.

and th

The Rule of Law or The Rule of Lawyers

2010-11-24T12:06:00.003Z

I have copied the following report from Life Site News because I feel what Justice Scalia is denouncing in the US legal system is extremely relevant to the misuse of the European Convention on Human Rights and the judicial activism of the European Court of Human Rights which regards the convention as a "living instrument". Though a wonderful idea in liberal theory it is in fact a pernicious attack on democracy and the rule of law because the Convention can be used to mean whatever the Court decides it means.

"RICHMOND, Virginia, November 23, 2010 (LifeSiteNews.com) - U.S. Supreme Court Justice Antonin Scalia slammed the modern U.S. judiciary and the high court for using the idea of a “living constitution” to invent new rules and meanings that have led to a “right” to abortion and decriminalized homosexual conduct.

Scalia made his remarks last Friday during a University of Richmond luncheon lecture entitled “Do Words Matter?” The event was covered both by the Associated Press. “The Constitution says what it says and it doesn’t say anything more,” said Scalia to an audience of 250 people, most of them legal professionals and academics.

The 74-year-old jurist, appointed to the high court by President Ronald Reagan in 1986, warned that government by judges is inevitable when the original meaning of legal language in laws and constitutions is not respected. This attitude, he said, allows “five out of nine hotshot lawyers to run the country.”

“Under the guise of interpreting the Constitution and under the banner of a living Constitution, judges, especially those on the Supreme Court, now wield an enormous amount of political power,” continued Scalia, “because they don’t just apply the rules that have been written, they create new rules.”

Scalia pointed out that the high court distorted the meaning of “due process” (referring to legal procedure) in the 14th Amendment to invent new rights under a “made up” concept of “substantial due process.” That has allowed the 14th Amendment to become the gateway to legal abortion and other behaviors, which the constitutional authors never intended and viewed as criminal.

(NB for non American readers the 14th Amendment reads as follows
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.")

“The due process clause has been distorted so it’s no longer a guarantee of process but a guarantee of liberty,” Scalia expounded. “But some of the liberties the Supreme Court has found to be protected by that word - liberty - nobody thought constituted a liberty when the 14th Amendment was adopted. Homosexual sodomy? It was criminal in all the states. Abortion? It was criminal in all the states.”

He also commented on the modern confirmation process of Supreme Court justices, saying it was akin to a “mini-constitutional convention” because Senators are fighting about how a justice will interpret words. “The way to change the Constitution is through amendments approved by the people, not by judges altering the meaning of its words,” he added.

The AP reports that after the lecture, Scalia signed copies of his new book, “Making Your Case: The Art of Persuading Judges,” and was going to lecture a class on the constitution’s separation of powers at UR’s law school.

Justice Scalia, along with Justice Clarence Thomas, are the high court’s two jurists that firmly embrace an “originalist” doctrine - abiding by the original intent and context of legal language - when it comes to interpreting the U.S. Constitution and federal laws. Scalia has criticized the high court’s 1973 Roe v. Wade decision as an “improper” ruling, saying the founding charter of the U.S. federal government had nothing to do either with abortion or even things like homosexual activity.

If the U.S. Supreme Court reversed its position on Roe, abortion would once again become a criminal matter for the states to decide how to regulate or prohibit.

US State Department on Religious Freedom in the UK

2010-11-24T01:09:00.004Z

The US State Department has issued its annual report on Religious Freedom in the world including the UK. It can be read at
http://www.state.gov/g/drl/rls/irf/2010/148995.htm

I was actually contacted by the US Embassy in London earlier this year and asked to comment and add to their existing report so it is nice to see that they have kept in all the parts where I expressed concern about the direction of policy in Britain and the way in which religious freedom is increasingly being restricted by the misuse of Discrimination laws and "hate crimes"

In general however the main value of the report is providing a concise description of the legal and constitutional status, legislation and organisation of religions in the UK and is worth reading for that reason alone
Generally

Freedom of Conscience and Abortion

2010-10-13T14:11:00.007+01:00

The Parliamentary Assembly of the Council of Europe has recently been considering the issue of Conscientious Objection in relation to participation in Abortion. Originally the proposals before the Assembly regarded Conscientious Objection not as a fundamental right but as a problem indeed the original title of the proposals before the Assembly was "Women’s access to lawful medical care: the problem of unregulated use of conscientious objection"

but this was amended to read "The right to conscientious objection in lawful medical care" and Para 1 of the Resolution as eventually passed by the Assembly reads
"1. No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason."

The amendments to the original proposals were initiated by two Parliamentarians Senator Ronan Mullen of the Irish Oireachtas (Parliament) and Mr Luca Volonte of the Italian Parliament. I had the good fortune to meet Senator Ronan during my recent visit to Dublin and I was enormously impressed by him.

The Resolution does not of itself have any direct legal force since the Council of Europe is not the European Union and does not make law. However the Council does have the role of defending the European Convention on Human Rights and it administers the European Court of Human Rights. Because of this resolutions by the Council of Europe are considered by the Human Right Court when making decisions concerning the Convention As an example look at the Judgment in the case of Layla Sahin v Turkey paras 66, 68, 69, 136 and para 18 of the dissenting judgment by Judge Tulkens.

Similarly when making arguments in UK Courts it is possible to refer to Resolutions by the Council of Europe or indeed any other other International organisation where those resolutions are relevant to a question before the Court.

I would see this Resolution defending Conscientious Objection as being valuable in protecting Medical staff who may be pressurised to participate in or indirectly assist in Abortion. The resolution specifically refers to the fact that "No person, hospital or institution shall be coerced, held liable or discriminated against"
because of their refusal to "accommodate, assist" with abortion. The fact that the Resolution specifically refers to discrimination could be quite significant in terms of the Anti-Discrimination provisions in The Equality Act 2010

At present most Doctors and Nurses in Great Britain who object to Abortion rely for their protection on section 4 of the Abortion Act 1967 which says
"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"

The leading case concerning s4 is Janaway v Salford HA [1988], 3 All ER 1079 HL where a doctor's secretary (Janaway) refused to type a referral letter for an abortion and was unsuccessful when she claimed that she was protected by s4. The House of Lords, in interpreting the word "participate" decided to give the word its "ordinary and natural meaning" which meant that s4 only applied to those who were being required to take part in an Abortion (e.g. the gynaecologist, the anaesthetist, or the assisting nurses) and did not cover ancillary involvement such as signing an Abortion Certificate or referring a patient to another Doctor who would carry out an Abortion. The general effect of the Janaway case has been an assumption that Doctors in particular only have very limited legal rights to object to involvement in the Abortion process. However though Janaway is still good law it is no longer the last word on the subject of conscientious objection.

Sections 10 and 19 of the Equality Act combine to make it unlawful for an employer to
apply a provision, criterion or practice which puts, or would put, persons [ie with a religious or philosophical objection to abortion] at a particular disadvantage when compared with persons [who do not have any religious or philosophical objection to abortion]

The defence to an allegation of indirect discrimination is that the "provision, criterion or practice" is a " proportionate means of achieving a legitimate aim"

It is when Courts are applying the test of proportionality that Resolutions such as that by the Council of Europe come into play to protect Doctors, Nurses, Pharmacists or even Health Service Typists who do not want to assist in Abortion in any capacity. Similarly Religious Hospitals or Organisations which may find themselves being pressurised to agree to Abortion services as a condition for receiving NHS contracts could use the resolution to allege that they were being Discriminated against.

Certainly the resolution will not provide a magic bullet defence to any person or organisation who finds themselves being pressurised with regard to Abortion but it certainly provides a moral and potentially a legal support to those people who recognise that unborn children are human beings too. After all everyone who is reading this Blog was a foetus once.

Equality Act - 1 October 2010

2010-09-30T19:04:00.008+01:00

The majority of the provisions in The Equality Act 2010 are due to come into force on 1st October 2010. The details are contained in Statutory Instrument 2010 No. 2317

The relevance to Religion Law issues is that the 2010 Act unifies all Anti-discrimination legislation and therefore replaces the

The Employment Equality (Religion or Belief) Regulations 2003
Part 2 The Equality Act 2006 (Religious Discrimination in Goods & Services)
The Employment Equality (Sexual Orientation) Regulations 2003
Equality Act (Sexual Orientation) Regulations 2007

In theory new Act does not change the law but merely consolidates it into one statute however we shall have to see what happens in practice. In the short term there should be no major changes to how equality law is applied where there is conflict between religious discrimination and same sex discrimination.

In the longer term the fact that marriage and civil partnership is now a "protected characteristic" may lead to additional pressures on religious organisations (ie the vast majority) that do not recognise civil partnerships as equivalent to marriage.

Section 193 of the Act which relates to Charities could have an important and harmful long term effect where it says
(1)A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if—
(a)the person acts in pursuance of a charitable instrument, and
(b)the provision of the benefits is within subsection (2).
(2)The provision of benefits is within this subsection if it is—
(a)a proportionate means of achieving a legitimate aim, or
(b)for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic

As the case of the Catholic Adoption Agencies and the case of Ladelle
have both shown the idea of "proportionality" is a dangerously subjective concept and ithere is a great danger that this clause will can be used to force religious charities to choose between closing down or acting contrary to their religious ethos and principles.

The Government is still consulting on section 202 which will allow Civil Partnerships to be held on religious premises As I Blogged on 23 February
the main concern with this provision is the possibility that once Civil Partnerships become possible on Religious Premises it will subtly become unlawful for any religious premises to refuse to offer them.

The Government has not brought into force Parts 1 (Socio -Economic Inequalities) or Part 11 Chapter 1 (Public-Sector Equality Duty) and is consulting on these provisions. It is quite possible that they will not be brought into force

Iona Institute Talk 24 September 2010

2010-09-29T14:34:00.007+01:00

On the 24th September I was one of the speakers at a conference in Dublin organised by The Iona Institute. Below is a copy of the speech I made which reviews the various cases involving religious freedom issues which have come before the British Courts over the past few years. For more details about the conference read HERE and HERE

RELIGIOUS FREEDOM IN THE UNITED KINGDOM

(A talk for the Iona Institute 24 September 2010
by Neil Addison (Barrister), National Director, Thomas More Legal Centre)

The best summary of the current position for Religious believers in Britain was given by Dr Rowan Williams Archbishop of Canterbury when he said in an Interview on 11 December 2009

“The trouble with a lot of Government initiatives about faith is that they assume it is a problem, it’s an eccentricity, it’s practised by oddities, foreigners and minorities"

and a similar comment was made by Catholic Archbishop Peter Smith

"religion is regarded as a legally permissible private eccentricity; allowable behind closed doors once a week, but not in any way to be given expression in public or working life"

The growing secularisation of British life is of course something shared with much of Europe but two specific problems in Britain arise from the 30 year history of the Northern Ireland troubles followed by the September 11 2001 attacks in New York and the July 7 2005 attack in London. In consequence Religion is often subconsciously seen in Britain as not merely a harmless eccentricity but as a potentially dangerous eccentricity.

LEGISLATION

Because the legal position relating to religion in the UK differs in detail between the four nations which form the Union I shall primarily concentrate on the position in England and on the principle English cases. The main legal provisions which are relevant are

The Human Rights Act 1998
The Employment Equality (Religion or Belief) Regulations 2003
Part 2 The Equality Act 2006 (Religious Discrimination in Goods & Services)

The Human Rights Act incorporated into UK Law the European Convention on Human Rights including Article 9 of the Convention which says

9.1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
9.2 Freedom to manifest one’s religion or beliefs shall be subject only to 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

As I hope to demonstrate in this talk almost any restriction on freedom to manifest religion can be justified under the caveats in 9.2

ARTICLE 9

The first major test of Article 9 came with the case of Begum where schoolgirl Shabina Begum wanted to wear the Islamic Jilbab in school, the Jilbab being contrary to the School rules. The Judicial Committee of the House of Lords (now the UK Supreme Court) held that the rules of the School were justified under 9.2. The most important words in the Begum judgment came in the judgment of Lord Hoffman where he said at para 51

“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”

That phrase, which was quite understandable in its context, has since been repeated in virtually every case where religious believers have tried to rely upon Article 9 and in has made Article 9 of little practical value

RELIGIOUS AND GAY RIGHTS IN EMPLOYMENT

Though there have been some other attempts to utilise Article 9.2 the main legal thrust since Begum has been under the 2003 Regulations and the 2006 Act and the main challenge involving these legislative provisions is that they were passed in association with

The Employment Equality (Sexual Orientation) Regulations 2003
Equality Act (Sexual Orientation) Regulations 2007

which has made discrimination on the grounds of sexual orientation illegal in both employment and the delivery of goods and services.

The main case involving a clash between the principle of freedom of religious belief and non discrimination on grounds of sexual orientation was the case of Ladelle. Lillian Ladelle was a Registrar of Marriages employed by Islington Council in London and when the Civil Partnership Act 2004 came into force she was also designated as a Registrar of Civil Partnerships. As a Christian she disapproved of same sex partnerships and so arranged to swap Civil Partnership ceremonies with colleagues who were willing to perform them. It is important to note that it was accepted throughout all the legal proceedings that no same sex couple were ever deprived of a partnership ceremony and the registrar service in Islington was not affected or reduced.

Unlike the position in Ireland it is not a criminal offence in England for a registrar to refuse to perform a marriage or a civil partnership ceremony however 2 gay members of staff in Islington complained to Islington Council about Lilian's practice of arranging that she would not perform same sex partnerships and she was ordered to perform such ceremonies. She claimed religious discrimination and the case went to an Employment Tribunal where she won her case, the ET said

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

The idea that Courts seek to balance conflicting rights is an old one in Law and it was therefore surprising that both the Employment Appeal Tribunal and the Court of Appeal overturned the Tribunal decision. The Master of the Rolls (The Senior English Civil Judge) 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.”

The idea that a Civil Court could or should decide what is or is not a “core part” of a religion is startling and disturbing because on that basis one can almost ignore every form of Religious Discrimination on the basis that the belief is not a “core” part of the religion. In addition the remark that Ladelle was still free to worship, in her own time, is extraordinary in the context of a claim about religious discrimination in the workplace. The point is that she was faced with a choice of either leaving the job she had done without criticism for many years or acting contrary to her conscience.

Another phrase by the Master of the Rolls in Ladelle demonstrated complete inability to get to grips with the real issues in the case when he said

“It would have been no more acceptable for someone with Ms Ladele's views to refuse to perform civil partnerships than it would have been for a militant gay registrar to refuse to perform marriages between people who, for religious reasons, objected to homosexual relationships or civil partnerships.”

The real difficulty with this remark was that it fails to distinguish between dislike of the individual and moral complicity in a wrongful act. The Court also failed to really grapple with the idea of an employer making reasonable accommodations for an employees religious beliefs where such accommodation would not prejudice the work of the employer

The Ladelle case was firmly followed in the case of McFarlane v Relate where a Christian relationship counsellor asked not to have to counsel same sex couples re their sexual problems. In an attempt to appeal the decision Lord Carey (a former Archbishop of Canterbury) put in an Affidavit asking for understanding for Christian objection in these situations. This led to an extraordinary response from Lord Justice Lords who said that giving any legal protection to manifestations of religious belief would lead to a “Theocracy”. A Theocracy, of course, imposes its beliefs on others and it is in my view arguable that what the courts have done in Ladelle and Mcfarlane is much closer to the spirit of a Theocracy than the requests by these Claimants that their freedom of conscience should be respected.

In his rejection of Lord Careys concerns about the trend of anti-religious, and specifically anti-Christian decisions by Courts dealing with religious freedom cases Lord Justice Lords said

“Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots”

However only 2 months later in a decision in the Supreme Court HJ (Iran) regarding the rights of gay asylum seekers Lord Hope referred to

“The rampant homophobic teaching that right-wing evangelical Christian churches indulge in throughout much of Sub-Saharan Africa”

WEARING A CROSS

The next major issue in religious freedom involved the wearing of a cross by an Employee of British Airways Nadia Eweida BA claimed that this cross was in breach of its uniform policy though it accepted that it permitted Muslims to wear Hijabs and Sikhs to wear Turbans and Kara bracelets. The Court decided that Eweida was not discriminated against because

“visible display of the cross [was not] a requirement of the Christian faith”

This decision is particularly hard to square with another decision where a school was told that it must allow a Sikh schoolgirl Sakira Singh to wear a Kara bracelet even though the court in that case accepted

“the claimant is not obliged by her religion to wear a Kara, it is clearly in her case [an] extremely important indication of her faith"

The logic of the decision in Eweida was followed in the case of Chaplin v Exeter NHS Trust where the Employment Tribunal said

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

As with the case of Ladelle the Courts were assuming that they had the right to allocate levels of seriousness to religious belief and practice

FREEDOM OF RELIGIOUS ORGANISATIONS

Serious though these cases were a far more fundamental issue has arisen as to the extent to which religious organisations are going to be allowed to exercise freedom in their internal structures. The most serious example of this was the case of R v JFS School. Formerly known as the Jewish Free School JFS selected pupils who were designated as Jewish according to principles laid down by the Chief Rabbi in accordance with millennia old Jewish law under which a person is Jew either through conversion or through matrilineal descent.

The child 'R' in the case who had a Jewish father and non Jewish mother was therefore not classified as a Jew and so he was not eligible to go to JFS. His mother had actually converted to Judaism but via a reformed rather than an orthodox Synagogue and therefore her conversion was not recognised as valid by the Chief Rabbi who is Orthodox. The Supreme Court by a majority of 5-4 held that the rules applied by the Chief Rabbi were racist and therefore illegal.

Lady Hale in the main majority judgment said in para. 66
"Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the child’s ethnic origins? In my view, it clearly is. M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic."

whilst Lord Rogers put the alternative view
“Lady Hale says that M was rejected because of his mother’s ethnic origins which were Italian and Roman Catholic. I respectfully disagree. His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices”

Whatever the legal merits of the decision in terms of theoretical law the principle behind the JFS decision is astonishing. What the Supreme Court in effect said was that it had the right to overrule the Chief Rabbi and to say that someone was a Jew when the Chief Rabbi said that he was not. I rhetorically asked in the Catholic Herald “what next. Will the Courts say that someone is a Catholic or indeed a Catholic Priest even though the Pope says they are not” The right of a religion (or indeed any organisation) to determine its own membership is fundamental to the survival of a free society and yet that fundamental principle seems to be being ignored by Court interpretations of Equality legislation

Another case involved the application of the Sexual Orientation Regulations (SOR's) to Catholic Adoption Agencies. There were over 20 Catholic charitable agencies attached to various Diocese many of which had operated for over 100 years providing a variety of social services including adoption services. They did not themselves arrange adoptions which remain the responsibility of local authorities but they were employed by local authorities to find prospective adoptive parents. They were particularly successful in finding parents for children who were hard to adopt often because of disability or for other reasons.

The problem for the agencies was that adoption services were covered by the SOR's and therefore the agencies would be obliged to accept same sex couples as potential adoptive parents contrary to Catholic teaching. Most of the agencies caved in to this and separated from the Church however two tried to carry on by amending their constitution to specifically state that adoption services would only be provided to heterosexual couples. Having such a clause would allow them to take advantage of a specific provision in the SOR's which permits Charities to discriminate if that is set out in their constitution
(NB This exemption is standard in all UK anti-discrimination legislation and, for example, permits charities to be formed which provide services only for women, people from a particular country or persons suffering from a specific disability).

The Charity Commission regulates charities and has to approve changes to their constitutions and it refused to allow the adoption agencies to change their constitution because “Discrimination on the ground of sexual orientation is a serious matter “ What was of no importance was the religious nature of the Charity and no respect was shown to the fact that it had been formed by the Catholic Church which naturally wanted its own charity to act in accordance with Catholic teaching. No regard was paid to the idea of an organisation having the right to its own identity

THE FUTURE

How the future will develop for religious freedom in the UK in the future is difficult to tell. We are constantly being told that we are a secular society and at the same time that we are a multi-faith society and the conflict between those two positions has not yet been truly faced up to let alone resolved.

One new factor is the economic crisis which has already caused our new coalition government to look to charities and voluntary groups as having an increasingly important social role under the government policy of “the big society”. A fact that some government ministers are beginning to articulate is that the majority of charities and voluntary organisations have a religious basis or backing and there is a real question as to how far government is prepared to allow religious groups their own freedom of action.

In his speech in Westminster Hall on 17 September 2010 the Pope set out this challenge to Government when he said

“I am convinced that, within this country too, there are many areas in which the Church and the public authorities can work together for the good of citizens, in harmony with Britain’s long-standing tradition. For such cooperation to be possible, religious bodies – including institutions linked to the Catholic Church – need to be free to act in accordance with their own principles and specific convictions based upon the faith and the official teaching of the Church. In this way, such basic rights as religious freedom, freedom of conscience and freedom of association are guaranteed”

Whether government and courts will allow religious organisations this level of freedom remains an open question but the omens are not good

And the Queen Wore Blue

2010-09-16T19:30:00.008+01:00

On 8th September 2010 Geoffrey Robertson published in The Independent a section from his Book "The Case Against the Pope".

I had answered most of his points earlier in my Blogs on 9 April and 26 July but I noticed one quote from his book which is worthy of comment

He [ie Pope Benedict]will, it is said, emerge at Edinburgh from the papal plane resplendent in his red satin "head of state" robes ("trimmed with fur on top of a rochet, and wearing the embroidered papal stole") for his meeting with a fellow head of state – Queen Elizabeth II (who must wear black – only Catholic queens can meet the Pope in white)

Looking at the TV and Newspapers I notice that the Queen is not wearing Black she is in fact wearing a very fetching shade of light Blue. Speaking as a Barrister I can say that the rest of the book is as incorrect about the facts and the law as it is about the Queens wardrobe

For those who might want a second legal opinion similar to my own can I recommend the Blog of the European Journal of International Law

Finally one point specifically worthy of comment in Robertsons article where he says that Child Abuse by a Priest is WORSE than Child Abuse by parents which is a weird and frankly rather repellant opinion.

Robertson also makes some allegations based on alleged Catholic views of masturbation. I could reply to those points but I am happy to accept that Robertson is better qualified than myself to comment on that subject

American Atheists Inc v Utah Highway Patrol Association

2010-08-26T16:37:00.005+01:00

The US 10th Circuit Court of Appeals has made a decision in the case of American Atheists, Inc v Utah Highway Patrol Association which overrules an earlier decision by a US District Court in 2007. The Appeals Court decision relies heavily on the US Supreme Court decision in the case of Pleasant Grove City v. Summum.

The case involved the "No Establishment Clause" in the Ist Amendment to the US Constitution and concerned memorial crosses erected by the Utah Highway Patrol Association [ a private Charity] in memory of Utah Highway Patrol Officers who have been killed on duty. In the earlier District Court hearing the Court had held that the cross was not an exclusively religious symbol and it depended on the circumstances in which it was used. (An interesting sideline mentioned in the judgment was the fact that in Utah the majority Christian faith is Mormonism and the Mormon Church does not use the Cross as part of its religious symbols or worship)

The Court of Appeals however decided that the Cross was an exclusively religious symbol and as such violated the No Establishment clause. They also held that the American Atheists had standing to bring the claim because
"Here, the individual named plaintiffs allege to have had “direct personal and unwelcome contact with the crosses.” Mr. Andrews, one of the named plaintiffs, also stated that he has “occasionally altered [his] travel route or [has] not stopped at a particular rest stop to avoid contact with the crosses.”
which provides an interesting variation on the usual suggestion that it is religious people who are oversensitive. The oversensitivity of the American Atheists in Utah seems to uncannily parallel the oversensitivity of the Atheist Italian in the European Court of Human Rights case of Lautsi v Italy

What I found peculiar in the 10th Circuits reasoning was that they found
"None of these families [ie the families of the deceased Highway Patrolmen] have ever objected to the use of the cross as a memorial or requested that the UHPA memorialize their loved one using a different symbol. However, because the UHPA exists to serve family members of highway patrolmen, the UHPA would provide another memorial symbol if requested by the family."

It seems to me that on any rational understanding of the Non Establishment clause the fact that other Non Christian symbols were available to any family that wanted it destroys the suggestion that the memorial crosses constitute an establishment of religion. If the family of a deceased Highway Patrol officer want his (or her) sacrifice to be memorialised by a cross what right does anyone else have to object ?

Catholic Care An attack on the idea of Charity Itself

2010-08-23T15:18:00.005+01:00

The decision by the Charity Commission to refuse permission for the Leeds based Catholic Care Charity to amend its objects was depressingly predictable but what seems to have been overlooked in the acres of comment on the decision is the fact that the decision attacks the independence of the notion of charity itself

For those who have not followed the story closely back in 2007 Parliament passed the Sexual Orientation Regulations which prohibited discrimination against homosexuals/lesbians in the supply of goods and services, a Hotel for example cannot refuse to provide a double room to a same sex couple. However the SOR's apply to Charities and voluntary organisations as well as to businesses and therefore under the SOR's Catholic ,and other religious, Charities which dealt with finding adoptive parents were going to be legally obliged to deal with Same Sex couples who wanted to adopt.

Since Catholic belief is that same sex relationships are sinful ( a view shared by all mainstream Christian denominations alongside Jews, Muslims, Buddhists and Sikhs ) this faced the Catholic Adoption Agencies with a moral dilemma. However the obvious solution lay in the use of reg 18 of the SOR's which does allow Charities to discriminate.

Reg 18 says
(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if
(a)he acts in pursuance of a charitable instrument, and.
(b)the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument

It should be noted at the outset that Reg 18 is not a "legal loophole" nor is it something specifically added to the SOR's so as to disadvantage homosexuals, the same provision applies in all the other varieties of Anti-discrimination law and allows Charities to obtain exemptions from those laws. This is is based on the recognition that people can set up Charities for a wide range of reasons.

For example lets say a successfull Black businessman wanted to set up a fund to give scholarships to poor black youths or a Scottish businessman wanted to set up a charity to help homeless Scots in London; such Charities would be racially discriminatory but that discrimination would be allowed under Race Discrimination legislation. Similarly a Charity helping battered women would discriminate on the grounds of sex and a Charity helping the deaf would discriminate on the grounds of disablity but in both cases that discrimination would be legal.

Catholic Care therefore decided to amend its Charitable objects to add the following clause

"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals will 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."

I have commented on other occasions that in my opinion the drafting of this clause was fundamentally flawed because it was explicitly and obviously discriminatory and it only dealt with adoption services. In my view the Charity should have applied to amend its constitution to read something like the following

"The Charity shall provide its services 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."

That said the proposed change was, in my view, within the ambit of reg 18

The Charity Commission rejected the proposed amendment on 18th November 2008
The Charity appealed to the Charity Tribunal which rejected the appeal on 1st June 2009
The Charity appealed to the High Court which in decision [2010] EWHC 520 (Ch) dated 17 March 2010 ordered the Charity Commission to reconsider its decision
The Charity Commission reconsidered and on the 21st July 2010 issued its decision which was formally announced on 18th August namely that it had reached exactly the same decision it made before

The Charity Commission made its decision knowing that the consequence was that Catholic Care would stop offering its adoption services and as such is notable for its lack of consistency of logic when it says

The interests of children are paramount - the courts have found that it is in the interests of children waiting to be adopted that the pool from which prospective parents are drawn is as wide as possible.
Local authority evidence suggests that even if the charity were to close its adoption service, children who would have been placed through the charity are likely to be placed through other agencies

Clearly if the closure of Catholic Care adoption services would not reduce the pool of adoptive parents then its retention would not either so what exactly was the harm in permitting Catholic Care to continue , where is the sense of proportionality which was the main thrust of the High Court decision. More importantly by saying that it cannot allow Catholic Care to "discriminate" the Charity Commission has in effect rendered reg 18 meaningless and made its views about discrimination take precedence over the law as passed by Parliament.

Also the Commission has dealt a blow to the idea of Charity itself which is the free giving by individuals and organisations to help others. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to organisations that arrange adoption services only for heterosexuals, or only for homosexuals, or disabled people or black people or white people what right does the government have to interfere with that choice ?

The provision of adoption services is a good thing in itself and a charitable purpose and for that reason alone should surely have been permitted even if the Commission felt that the services were provided on too limited a basis. The Commission seems to have regarded Charitable status as a favour granted by itself rather than as a good thing to be encouraged. This decision by the Charity Commission has, quite rightly been criticised as an attack on religious freedom but I would go further it is an attack on freedom itself. If individuals, churches and organisations do not even have the right to choose how to give away their own money then freedom itself ceases to exist.

We are increasingly hearing the phrase "soft totalitarianism" and this decision is an example of that totalitarianism because it has no respect for the independence of charities or the independent role of private organisations as part of civil society. Since when has it been the role or right of government to say that "we will not allow you to use you own money to do good unless you use it in a way we agree with".

Doe v Holy See - Update

2010-08-10T19:07:00.004+01:00

My earlier Blog Doe v Holy See - Not as Important as it appears has been supported by the decision today to withdraw three Civil Claims against the Holy See brought in Kentucky. As I mentioned the main point of the Doe case was that it rejected the idea that Catholic Diocese or Orders were "agents or instrumentalities" of the Holy See and it also explicitly accepted that because the Holy See is recognised as Foreign State by the US Government it therefore is a Foreign State under US Law.

Though the News Stories mention that the Oregon claims are still proceeding I suspect that the lawyers in that case will recognise that they will have an insurmountable problem trying to prove that Priests in America are "employees" of the Vatican. Incidentally the American Doe case does demonstrate that Geoffrey Robinson was talking legal rubbish when he suggested that the Vatican was not a State in International Law which is what I said at the time

A WORLD-WIDE CRIMINAL CONSPIRACY ?

2010-07-26T08:04:00.009+01:00

1. It has been suggested in various Newspaper Articles, Media interviews, Blogs etc that documents revealed during the Catholic Church child abuse scandal have implicated the Church in general and Pope Benedict in particular in a criminal conspiracy to facilitate child abuse or alternatively to obstruct justice by failing to report allegations of child abuse to public authorities.

2. In looking at these allegations I shall principally rely on broad legal principles drawing on examples within English Common or statute law and international law. Though every country has its own particular laws and legal system and the details differ from country to country it is the case that legal broad principles are generally the same across civilised legal systems. In addition by definition if something done by the Church could be held to constitute a crime within one country only by reason of the specific wording of the law of that country then by definition it can hardly constitute an international criminal conspiracy spread across several countries.

3. The Church Documents I shall deal with are “Crimen Solicitonis” issued to all Bishops of the Church in 1962 and “De Delictis Gravioribus” also issued to all Bishops of the Church in 2001 and signed by the then Cardinal Ratzinger; this document was accompanied by a covering letter Sacramentorum Sanctitatis Tutela signed by Pope John Paul II. I shall refer to these documents as the “1962 letter” and the “2001 letter”. As a side point I note that the 2001 letter was published in the 2001 issue of the Vatican Year Book Acta Apostolicae Sedis for 2001 which is a document that has always been publicly available and not secret, and the 2001 letter specifically refers to the 1961 letter

CONSPIRACY etc

4. In English Statute Law the crime of conspiracy requires two or more persons to agree to carry out a course of conduct which “will necessarily amount to or involve the commission of any offence” ( Section 1(1) of the Criminal Law Act 1977) whilst the Common Law definition of conspiracy accepted by the US Supreme Court in Iannelli v. United States, 420 U.S. 770, 777 (1975), United States v. Shabani, 513 U.S. 10 (1994) involves “an agreement to commit an unlawful act” and a21 of the Canadian Criminal Code requires “an intention in common to carry out an unlawful purpose”

5. In his Guardian Article suggesting that the Pope should be arrested when he visits Britain Geoffrey Robinson QC accused the Pope and the Church of “aiding and abetting sex with minors.”. Under English Law “aiding and abetting” requires the accused person to perform “an act capable of encouraging or assisting the commission of an offence” either “intending” or “believing” that the act will “encourage or assist its commission” (ss44 - 46 Serious Crime Act 2007) similar provisions apply in the criminal laws of Canada Australia and the USA.

6. Therefore in order to have the basis for a criminal prosecution either of conspiracy or aiding and abetting it is necessary to prove that the defendant (in this case the Pope and/or other Church officials) did acts (actus reus) which helped sex offenders to commit their crimes and/or to evade justice and that the intention (mens rea) of the Church was to assist in the commission of those crimes or the evasion of justice. In order for there to be a conviction for criminal conspiracy or aiding and abetting, under English law,there must be a deliberate intention that a crime should be committed (Callow v Tillstone (1900) 83 LT 411) and my understanding of the law in USA Australia and Canada is that the principle is the same in those jurisdictions.

7. The importance of intention to assist in a breaking of the law (mens rea) was emphasised in the House of Lords case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 where the House of Lords held that supplying contraceptive advise to under 16 year old girls did not constitute the criminal offence of aiding and abetting unlawful sexual intercourse even though (from a lay point of view) that would be the natural and inevitable consequence of the doctors actions

8. Therefore in order to prosecute the Pope or the Church on the basis of the 1962 or 2001 letters it is necessary to show that the intention behind the letters was to assist crime and careful reading of both letters show that they were in fact mainly aimed at dealing with acts which were not criminal

1962 & 2001 LETTERS

9. When examining the two letters it is important to bear in mind that they apply to the Church throughout the world and as such attempts to apply consistent internal Church rules to countries with a range of different legal rules and cultures. In the 2001 letter for example the age of a minor is set as up to 18 whilst across the world the legal age of consent for sexual intercourse can range from 13 in Spain or Nigeria to 18 in Swaziland or Idaho; similarly whilst consensual homosexual sex between adults is now legal in most countries it is still illegal in many countries and indeed was illegal in England until 1967

10. More importantly the two letters only deal with the internal procedures to be adopted by the Church in deciding whether a Priest accused of acts (which might or might not be criminal in the country in which they occur) should be disciplined by the Church and possibly removed from the priesthood. Nowhere in the letters is there any instruction that the civil authorities (Police) should not be told about allegations of criminal behaviour.

11. There is, of course, the criticism that neither letter gives direct and clear instructions that the civil authorities must be informed however that ignores the fact, already mentioned, that many allegations may be criminal in one jurisdiction but not criminal in another and many of the acts mentioned in the 1962 and 2001 letters are not criminal in any jurisdiction. For example a Priest who has sex with a 14 year old girl in Spain does not commit a crime but would in England, a Priest who has an adulterous heterosexual relationship would not commit a crime in England but would commit a crime in Iran which could lead to him and the woman being stoned to death, similarly with homosexual behaviour by a Priest. All of those would be regarded by the Church as offences contrary to the two letters but would be regarded in entirely different lights by law enforcement officials in different countries.

12. It is also important to remember that the 1962 letter was issued in 1962, when consensual interacial sex was illegal in much of the United States as well as in South Africa, when Communism ruled much of the world and when a person who attended Church could lose their job if the Communist authorities became aware. 1962 was only 4 years before the start of the Cultural Revolution in China when Churches were attacked and Priests killed, only 6 years after the crushing of the Hungarian uprising and 6 years before the crushing of the Prague Spring. In those circumstances it is hardly surprising if Church instructions did not require that all State authorities be automatically informed of any allegations made against a priest.

13. In addition it should be remembered that the 1962 letter was a reissue of an earlier letter issued in 1922 and that year must also be seen in its historical context. The Bolsheviks had just finalised their grip on power and persecution of the Church and Church authorities was intense. In Mexico Anti-clerical violence and state sanctioned murder of priests was beginning (dramatised in The Power and the Glory by Graham Green)and China was in chaos being ruled either by Warlords or Japanese occupation. Once again it is unrealistic to expect that an instruction to the Church throughout the world would give instructions that in every country the civil authorities should automatically be informed that a criminal allegation had been made. After all how does a Bishop report a crime to the Police when being a Bishop is itself a crime ?

Criminal Conspiracy

14. Though the main attention on the 1962 letter has concentrated on the issue of Child Abuse any suggestion that it is intended to assist in a conspiracy of child abuse has to take account of the fact that the 1962 letter primarily deals with “Solicitation in the Confessional” which would not constitute a criminal offence in most legal systems. The letter then mentions in para 71 Homosexual relationships, and deals in para 73 with sexual relationships with minors or with animals and applies the same rules to those offences as it has applied to the (non criminal) practice of solicitation in the confessional.

15. Therefore if the 1962 letter is to be regarded as evidence of a criminal conspiracy that is inconsistent with the fact that its primary focus is on an activity which is not criminal because if the primary focus is on an activity which (though reprehensible) is legal then there is no evidence that the intention of the document or the drafters of the document was to aid unlawful acts.

16. This particular analysis is strengthened by the 2001 letter which besides the offences listed in the 1962 letter also deals with such non-criminal acts as “the taking or retaining for a sacrilegious purpose, or the throwing away of the consecrated species (Host)” (Art 2 1.1 “consecration for a sacrilegious purpose of one matter (ie bread or wine) without the other in a Eucharistic celebration “ Art 2.2. In simple terms it is impossible to establish a case of criminal conspiracy based on a document which is primarily focused on dealing with acts which are not in themselves criminal.

Secrecy

17. An important part of the allegations involving the 1962 and 2001 letters involve the “oath of Secrecy” required of those who give evidence or participate in one of the Churches own Courts dealing with allegations against a Priest. As a lawyer in the Anglo Saxon Common Law tradition I can understand that criticism however once again it is important to remember that both letters apply throughout the world and therefore to countries with vastly different legal traditions. In Portugal for example Article 86 of the Portuguese penal code imposes “Judicial Secrecy” on all witnesses in a criminal investigation, a legal rule which seemed incomprehensible to the British Media during the Madeleine McCann case

18. Similarly in England prior to a trial there are extensive legal restrictions on what the media can report but no such restrictions apply in the United States

19. More pertinently perhaps it must be remembered that in general Church Tribunals have no legal standing within their individual countries and without a promise of secrecy it may be difficult if not impossible for them to operate. If, for example, a Priest was facing an allegation of sexual abuse which, for whatever reason, was not being prosecuted in the state courts then witnesses who gave evidence could potentially be sued by him for slander or, in some countries, possibly even prosecuted for criminal libel. In other jurisdictions the party making the complaint could possibly face execution (if the allegation related to an adulterous or homosexual relationship) or social ostracism. Requiring an oath of secrecy can therefore be justified as providing both witnesses and also the accused with some protection for their reputation and, in some countries, their personal safety.

20. In England Police Disciplinary Tribunals sit in secret (Reg 32(1) Police (Conduct) Regulations 2008). In April 2010 it was discovered that 12 years previously a Police Constable had been convicted of assaulting a suspect but had not been dismissed, he subsequently went on to seriously assault a 19 year old female suspect. Though there was criticism of the Police there was no suggestion that the decision by the (secret) Disciplinary Tribunal was in any way illegal

Summary

21. Church authorities in individual countries can be criticised for responding inadequately to allegations of child abuse and those situations have to be dealt with country by country but the main allegation being made against the Church and the Pope is an allegation of criminal conduct and that allegation is not justified by any proper analysis of the facts, the evidence or the law.

Sharia Law in Britain - How Significant ?

2010-07-12T17:44:00.004+01:00

The One Law For All Campaign has recently held a demonstration in Trafalgar Square opposing the spread of Sharia Based Tribunals in Britain and has issued a booklet Sharia Law in Britain a Threat to One Law for All and Equal Rights. Though I have sympathy with some of the objections raised by the campaign I do consider that the issue is rather more complex and subtle than they suggest

Following the demonstration Maryam Namazie who directs the campaign wrote an Article in The Guardian and I was asked to write one in response I hope that both articles are a worthwhile contribution to this complex debate that can inspire very strong feelings on both sides

Maryam Namazie - The Guardian 5 July 2010
Neil Addison - The Guardian 8 July 2010

Doe v Holy See - Not as Important as it appears

2010-07-05T14:18:00.007+01:00

Many media outlets have been announcing that the Vatican has been stripped of its Diplomatic Immunity by the US Supreme Court of which this Article in the Guardian Newspaper “Without its immunity, can the Vatican survive ?” is fairly typical. Unlike just about everyone else who seems to have commented on the subject I decided to find the facts first and comment afterwards and the actual legal facts are quite different from what is being reported.

Firstly the US Supreme Court has not made any decision for or against the Vatican, or The Holy See as it is more properly termed, what the Court has done is to refuse to review a decision made by a lower Court namely the Ninth Circuit Court of Appeals and this is simply reported on the Supreme Court website as “Certiorari Denied” along with a large number of other refusals of “cert”. I will deal with the implications of the Supreme Court refusing cert later but for the moment will look at the 9th Circuit decision itself Doe v Holy See No 06-35563

I am, of course, not an American Lawyer but the US and England share a common legal heritage and approach as is well demonstrated in this case which followed exactly the same legal principles applied in an English “strike out” application. A strike out application occurs before a trial and requires the Court to assume, FOR THE SAKE OF THE ARGUMENT, that everything alleged by the plaintiff is true which is exactly the assumption the 9th Circuit was required to make when it was considering this appeal. It is important to be clear on this point, there has been no trial regarding Does allegations or assertions and all the legal proceedings so far have been entirely questions of law.

In the case Doe ( a pseudonym) is alleging that he was abused around about 1965 by a Priest Father Ronan (who is now dead); whilst it is difficult to see how there can be a fair trial on something alleged to have been done 45 years ago that was not the issue before the 9th Circuit. In his claim Doe sued two US Diocese and also Ronans Religious Order which would be the normal defendants in this type of case. What made the case unique was that Doe also sued the Holy See on two basis namely that the Holy See was vicariously liable for the (alleged) acts of the 2 Diocese and the Order which he claimed to be the “agents or instrumentalities” of the Holy See, it was also alleged that Father Ronan was an “employee” of the Holy See and as such the Holy See was vicariously Liable for Ronans (alleged) acts.

Now it is important to understand that the 9th Circuit accepted completely that the Holy See was a Sovereign State under International and US law and as such was entitled to exactly the same diplomatic and legal immunity enjoyed by every other Sovereign State, no more and no less. Under US law no sovereign state enjoys blanket immunity from suit and every sovereign state can be sued under the provisions of the “Foreign Sovereign Immunities Act” (Wikipedia summary here) for Torts (Civil Wrongs) committed by its employees unless they are engaged in acts “peculiar to sovereigns” eg acting as an Ambassador or Consul.

To make a comparison, and without getting too technical, if an employee of the UK Government in the USA sexually assaulted a minor whilst visiting an American School in the course of his or her duties then the UK Government could be sued in the American Courts for damages arising from that Tort however that would not affect the status of the UK as a Sovereign independent state nor would it affect the general legal principle that UK Embassy staff cannot be sued for acts committed in carrying out their official duties. Similarly a British Trade mission could be sued for Torts committed by its staff in the course of their duties because the work of a Trade mission is not work “peculiar to sovereigns” [NB 'Sovereigns' in this context means any foreign ruler or Government whether republican or monarchical]

The 9th Circuit made no decision as to whether Father Ronan had or had not done anything wrong nor did they decide whether he was or was not an Employee of the Holy See. As I have already mentioned, there has not yet been a trial and no examination of any evidence and for the purposes of deciding whether the Holy See COULD be liable the 9th Circuit had to accept the bare assertion by Doe that Father Ronan was an employee of the Holy See. On that basis they decided that if (and it is a very big IF) Ronan was an employee of the Holy See then the Holy See would be vicariously liable for his actions. Whilst the question of whether Fr Ronan was an Employee of the Holy See will depend on the exact definition of “employee” in Oregon law it is up to Doe to prove that Fr Ronan was an Employee and I doubt if he will be able to do that especially if Fr Ronan was paid by the Diocese and/or his Order

More significantly the 9th Circuit decided that the American Diocese and the Order were not “agents or instrumentalities” of the Holy See and therefore the Holy See is not vicariously liable for any actions of the Diocese or their employees. That I think is the real core decision in this case and I suspect the lawyers for the Holy See are happy about it because it clearly distinguishes between the status of the Holy See as an Internationally recognised state under International Law and the status of the Diocese etc of the Catholic Church as nationally recognised Religious Organisations under US law. The Court noted for example that the Holy See can only be sued in the US Federal Courts under the defined terms of the “Foreign Sovereign Immunities Act” whilst Catholic Diocese etc can be sued in both State and Federal Courts under ordinary Tort liability, conversely American Catholic Diocese etc enjoy the protection of the 1st Amendment to the US Constitution whilst the Holy See does not.

In Summary therefore the United States 9th Circuit Court of Appeals (NOT the United States Supreme Court) has decided

The Holy See is a Sovereign State under US Law

The Holy See can only be sued in the US on the same basis as any Sovereign State and enjoys exactly the same immunity from suit as any other Sovereign State

Catholic Diocese and Organisations in the US are not “Agents or Instrumentalities” of the Holy See and the Holy See cannot be held liable for their actions

The Holy See can only be sued with respect to the Acts of its “employees” and not for the acts of Catholic Priests etc generally

Finally on the issue of the Supreme Court refusing to review the 9th Circuits decision (refusing 'cert' ) this is not unusual in the circumstances of this case where as yet there has been no trial and no findings of fact. No Appellate Court likes to deal with cases, such as this, where there have no been any findings of fact and where the decision of the 9th Circuit is not (so far as I can see) in conflict with any decision by any other Circuit. Refusing cert in these circumstances does not mean that the Supreme Court necessarily agrees or disagrees with the 9th Circuit merely that the case has not yet reached a stage which is appropriate for adjudication by the Supreme Court.

PS For my American Legal Readers (if any). If I have misunderstood or misrepresented American Law or procedure please let me know and I will correct the Blog. As an aside I do find the fact that American court Judgments contain “footnotes” very peculiar and unique to US Judgments. Yes I know I'm a Limey and you have just celebrated 4th July but honestly lads it does look weird !

Singh v Singh

2010-06-17T15:20:00.003+01:00

The case of Singh v Singh [2010] EWHC 1294 (QB) is worth a read because it deals with the issue of where the Courts draw the line in becoming involved in issues of religious belief. Mr Hardeep Singh (Defendant) had written an article in the Sikh Times questioning the religious validity etc of His Holiness Sant Baba Jeet Singh Ji Maharaj (Claimant), accusing him of being the leader of a Cult a Blasphemer and of engaging in religious practices which were incompatible with Sikhism. In response Jeet Singh sued Hardeep Singh for Libel.

The Judgment sets out both the particulars of claim and the defence and it is clear from them that any trial would involve an argument about the exact beliefs of Sikhism. For that reason Mr Justice Eady decided that the issues in the case
"cannot be isolated and resolved without reference to Sikh doctrines and traditions" and for that reason the case had to be stopped because Secular Courts cannot decide religious issues.

Interestingly enough the case seems to run counter to another recent case where Dr Taj Hargey of the Muslim Educational Centre of Oxford brought a claim for libel HERE and HERE against the Muslim Weekly which had accused him of being an Ahmadiyya Muslim (NB Other Muslims do not consider the Ahmadiyya to be Muslims and in Pakistan it is illegal for Ahmadiyya to call themselves Muslim or to call their places of worship Mosques).

Of course the case was settled before coming to trial but nevertheless it does seem that nobody in the Muslim Weekly's legal team thought to argue that the entire issue was outside the jurisdiction of the Secular Courts.

Bloody Sunday

2010-06-17T10:32:00.007+01:00

In one sense for me to comment on the Bloody Sunday Saville Inquiry means going outside the purposes of this Blog however since the Northern Ireland conflict has been defined in large part by religious differences forming a toxic mixture with racial and political differences the issue is I suppose peripherally relevant so I will comment on the possibility of the Soldiers of Bloody Sunday being prosecuted.

Firstly there is no doubt that what happened on 30 January 1972 was grotesquely wrong and everyone knew that at the time, similarly the Widgery Report was a disgrace and, once again, everyone knew that at the time. The soldiers should have been tried 38 years ago but they were not and the question is should they now be charged 38 years on. In those 38 years there have been many dead bodies in the streets of Northern Ireland and from terrorism in Great Britain and there are many unsolved and unpunished murders from those years. There is now a political settlement which though unsatisfactory in many ways has brought a peace to Northern Ireland the price of that peace has had to include allowing convicted murderers to go free and allowing into government those who have terrorist pasts and who are undoubtedly responsible for terrible murders and maimings in that past. An inevitable consequence of this peace process is that many of the dead of the past will not be given justice but the living of the present have been given peace. There is a trade off here which needs to be applied to the events of Bloody Sunday as much as to any of the other killings of the 30 years of conflict

Most of the discussion on the question of prosecuting the paratroopers of Bloody Sunday seems to concentrate on whether prosecutions should be brought and little attention seemed to have been paid to the question "Would Prosecutions Succeed ?" Merely because Lord Saville has reached the conclusions he has "on a balance of probabilities" after an extensive inquiry does not mean that another Judge and a Jury would reach the same conclusions "beyond reasonable doubt" in the much more exacting evidential framework of a Criminal Trial. The conclusions of the Saville inquiry do not constitute evidence for a Criminal Trial and the witnesses who gave evidence to Saville would have to give their evidence again in a Criminal Trial which could quite possibly lead to verdicts of Not Guilty. Where would that leave both the Peace process and the findings of the Saville inquiry ?

I know it has been suggested that instead of prosecutions for murder the soldiers could be prosecuted for perjury because Lord Saville said he believed they had given false evidence however a prosecution for perjury is even less likely to succeed than a prosecution for Murder because in order to establish that a paratrooper lied on oath the prosecution would have to prove what the truth was. In any event trying to prosecute someone for giving deliberately false evidence about something that occurred 38 years ago is problematic in the extreme. Even if their evidence could be shown to be wrong is it a deliberate lie or the simple fallibility of human memory ?

Also a prosecution for perjury does raise the issue of Martin McGuinness because Lord Saville clearly did not believe Mr McGuinness when he denied having a machine gun on the day. The idea of Mr McGuinness and paratroopers sharing the same dock is amusing but not realistic however if there are to be prosecutions for perjury rather than murder then the position re Mr McGuinness cannot be ignored

Finally any prosecution for perjury would have to take place in England and not in Northern Ireland because the Paratroopers gave their sworn evidence in London-England and not in London-Derry. I doubt if an English Jury would rush to convict. People in mainland Britain have accepted the release of convicted IRA etc killers as part of the peace process but if there were to be prosecutions of soldiers sent to Northern Ireland then that could be seen as double standards.

Personally I think Northern Ireland would have benefited from a South African style Truth and Reconciliation Commission rather than the Saville Inquiry but now that the inquiry has finally issued its report I hope that it may provide an end to Northern Ireland looking always at its past when it should instead be looking to the future

The autonomy of bishops, and suing the Vatican

2010-05-24T20:52:00.005+01:00

Two excellent and detailed articles in an American Catholic journal regarding the current attempts in the USA to sue the Pope and/or The Vatican over American Child Sex abuse. Well worth reading

http://ncronline.org/news/autonomy-bishops-and-suing-vatican

http://ncronline.org/blogs/ncr-today/obama-administration-sides-vatican-oregon-case

What have you been saying, homophobic wise ?

2010-05-24T19:02:00.007+01:00

The story about a Christian Street preacher, Mr Dale Mcalpine, who was arrested fro saying "Homosexuality is a sin" is a worrying reflection of the current obsession by Police and officialdom with the murky concept of "Hate crime".

The actual facts of the arrest of Dale Mcalpine were recorded on video and make worrying watching

The uniformed official grinning vacantly in the background is apparently the PCSO (Police Community Support Officer) who had actually called the Police to report Mcalpine preacher for "Homophobia". The first words of the Police when they arrive is
"Hello sir. What have you been saying, homophobic wise ?"
which hardly constitutes any form of articulate meaningful question and the conversation then gets worse

"McAlpine: I spoke to your officer earlier and he was upset that I was saying homosexuality was a sin – which is what the Bible says. And I affirm that’s what I say because that’s in the Bible. And there’s no law, there’s no law…

Police: Well there is.

McAlpine: No there isn’t.

Police: There is. Unfortunately, mate, it’s a breach of Section 5 of the Public Order Act"

following which Dale Mcalpine was arrested taken to a Police station, made to give his DNA and Fingerprints and eventually charged only to have that charge unceremoniously dropped by the Crown Prosecution Service once the facts of the case were examined by lawyers and Police officers who were capable of using more than one Brain Cell at a time.

If the arresting Police officer had been correct and it was a breach of s5 of the Public Order Act for someone to say that "Homosexuality is a Sin" that would raise some interesting questions; since when did it become the role of the law to decide what is or is not "a sin" and when did it become illegal to say that any form of behaviour was "a sin". If someone says that adultery is a sin can a serial womaniser demand their arrest, can a fat lazy slob demand the arrest of anyone who says that gluttony and sloth are 2 of the seven deadly sins ?

The real question is of course "Were the 3 Police Officers and 2 PCSO's involved in this situation all idiots or is there a problem with the wording of the law itself" ?

Section 5 which is the law that the arresting Police Officer referred to is one of the most common offences used in the Criminal Courts and most Police Officers and Criminal Lawyers can recite it from memory, What it actually says is.

"Public Order Act 1986, s. 5 Harassment, alarm and distress
(1) A person is guilty of an offence if he–
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

(2) An offence under this section may be committed in a public or a private place, except that no offence is committed where the words or behaviour are used, or the writing, sign or other visible representation is displayed, by a person inside a dwelling and the other person is also inside that or another dwelling.

(3) It is a defence for the accused to prove–
(a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or
(b) that he was inside a dwelling and had no reason to believe that the words or behaviour used, or the writing, sign or other visible representation displayed, would be heard or seen by a person outside that or any other dwelling, or
(c) that his conduct was reasonable.

(4) (arrest provisions now irrelevant)
(5) (arrest provisions now irrelevant)

(6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

S6(4)Mental element: miscellaneous)
A person is guilty of an offence under section 5 only if he intends his words or behaviour, or the writing, sign or other visible representation, to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting or (as the case may be) he intends his behaviour to be or is aware that it may be disorderly"

So the arrest of Dale McAlpine depended on the Police deciding that he had used "threatening, abusive or insulting words" when he said that "homosexuality was a sin". There is no legal definition of "threatening, abusive or insulting" because the Courts take the view that words are to be interpreted using their normal and natural meaning. On that basis the words "homosexuality was a sin" were clearly not "threatening" and they were not "abusive" but they could, I suppose, be regarded as "insulting" so the question I pose is "should it be an offence to use words that are insulting ?"

The concept of "insult" is after all very subjective and almost anyone can feel insulted by something. If somebody was to say "Geoffrey Robinson is a much better lawyer than Neil Addison" I might well feel insulted but should I therefore be able to demand that persons arrest, similarly when Nick Clegg denounced David Cameron for having joined up with "nutters" in the European Parliament should he have been arrested ?

To ask the question is itself to state the answer, insults should not of themselves be even considered as criminal. Looking back on the large number of s5 cases I have either prosecuted or defended over the years I cannot think of any "normal" public order situation which could not be covered by the words "threatening and abusive". Most cases under s5 involve people (often drunk) yelling aggressively and making frequent use of the "F" word and that is the sort of situation that s5 and indeed the entire Public Order Act was supposed to deal with, it was never supposed to deal with the situation where individuals, whether street preachers or otherwise, were expressing their personal opinions.

In the case of the Mohamed Cartoons those who objected to them said they were "insulting" and certainly the flexible, and highly subjective, nature of "insult" was one of my main reasons for opposing the proposed religious hatred law which, as originally proposed by the Labour Government, would have criminalised "threatening, abusive or insulting" words.

In one sense the real problem thrown up by the McAlpine case as with the numerous similar incidents of Police over-reaction to complaints of Homophobia, Islamaphobia, racism etc etc is the abysmally low standard of training of Police officers regarding the nebulous concept of "hate crime"; their lack of training about their duty to defend the legal right of free expression and a simple lack of old fashioned common sense.

Improving Police training in this area is therefore a priority however that improved training might benefit from a simple change in the law namely the removal of "insulting" from all offences in the Public Order Act 1986. If the new government is looking for a way of dealing with situations such as those of Dale McAlpine which tend to bring the Police into disrepute then removing "insulting" from the POA is my suggestion and for those who might want to oppose the suggestion I pose the question "what possible situation can you conceive of where a prosecution would be justified for the use of words which are 'insulting' but which are neither 'abusive' nor 'threatening'

PS I this Blog I have used words that could well be considered "insulting" by the PCSO and Police officers involved in the arrest of Dale McAlpine. Will I be arrested next ? I hope not but with the modern Police force one can never be sure.

'Islam will dominate the world' - Not a Hate Crime

2010-05-01T00:39:00.006+01:00

An interesting story in the Daily Mail today
http://www.dailymail.co.uk/news/article-1270021/British-Muslim-daubs-war-memorial-Islamic-slogans--CPS-says-NOT-racially-motivated.html

Here a Muslim Graffiti artist (Tohseef Shah) daubed a War Memorial with such gems as 'Islam will dominate the world - Osama is on his way' and 'Kill Gordon Brown' but was not charged with the Religiously Aggravated Form of Criminal Damage contrary to s30 Crime and Disorder Act 1998 but was only charged with "ordinary" Criminal Damage

The difference is more than merely the name of the offence. Ordinary Criminal Damage where the cost of the damage is less than £5000 (as in this case) carries a maximum penalty of 3 months imprisonment whilst "racially or religiously aggravated criminal damage" carries a maximum penalty of up to 14 years imprisonment so the decision by the CPS not to charge the religiously aggravated form of the offence was extremely significant for the Defendant and, in effect, tied the hand of the Court in how they dealt with Shah.

According to the Newspaper report the reason why the CPS decided not to charge Religiously Aggravated Criminal Damage was because

"The CPS said Shah's offence could not be charged as a hate crime because the law requires that damage must target a particular religious or racial group. It said: 'While it was appreciated that what was sprayed on the memorial may have been perceived by some to be part of a racial or religious incident, no racial or religious group can be shown to have been targeted.'"

Now if that truly was the view of the CPS then the CPS clearly did not bother to read and think about the law before making their decision and they certainly had not read my book where I deal in detail with the definition of "Religiously Aggravated" as defined in s28 of the Crime and Disorder Act 1998 (my emphasis)

28. - (1) An offence is racially or religiously aggravated for the purposes of sections 29 to 32 below if-
(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.
(2) In subsection (1)(a) above-
"membership", in relation to a racial or religious group, includes association with members of that group;
"presumed" means presumed by the offender.
(3) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above whether or not the offender's hostility is also based, to any extent, on- any other factor not mentioned in that paragraph
(4) In this section "racial group" means a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins.
(5) In this section "religious group" means a group of persons defined by reference to religious belief or lack of religious belief."

Now the Graffiti in question may not specify which religious group it is aimed at but the words "Islam will dominate the world" is clearly showing hostility towards everyone who is NOT a Muslim ie everyone who LACKS Islamic belief. Therefore Shah could, and in my view should, have been charged with religiously aggravated Criminal Damage relying on the "lack of religious belief" definition in s28(5). That is the specific reason why that wording is used in s28(5) in order to be able to deal with people who hate anyone who is not a member of their religion or their particular subgroup of a religion

At the very least the CPS should have charged both offences and run a trial

Lucky Mr Shah

What is Religious Discrimination ?

2010-04-30T00:29:00.003+01:00

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

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

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

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

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

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

2010-04-28T17:28:00.005+01:00

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

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

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

Italian Crucifix Case - Judgement now in

2010-04-13T22:15:00.005+01:00

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

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

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

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

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

Put the pope in the dock ?

2010-04-09T16:43:00.015+01:00

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

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

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

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

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

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

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

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

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

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

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

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

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

NHS Crucifix Worrying for Sikhs and Muslims ?

2010-04-07T18:23:00.012+01:00

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

Daily Mail
The Guardian
The Telegraph
The Independent

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

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

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

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

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

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

G'day Folks

2010-02-24T22:53:00.001Z

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

Civil Partnerships In Church

2010-02-23T16:19:00.002Z

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

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

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

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

A Muslim View on the Hijab debate

2010-02-15T19:28:00.004Z

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

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

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