Equality and Human Rights Commission Report

The Equality and Human Rights Commission has issued a Report on Religion or belief in the workplace and service delivery which is an analysis of a consultation regarding the operation of the Equality Act 2010 in relation to protecting (or not protecting) expressions of Religion and Belief especially in the workplace

I was asked to speak on the subject to BBC Radio Merseyside this morning and you can hear my contribution HERE (I am at 01:06:00  the contribution from the EHRC is at 00:06:00 )

My main point which I have made before is that the real problem is the fact that people increasingly look for reasons to be 'offended' rather than adopting a 'live and let live' attitude to others.  

The EHRC consultation elicited responses from 2,500 people with the largest number of responses coming from Christians from a number of denominations. The EHRC website says that

"Positive experiences included respondents describing workplaces with an inclusive environment in which employees and employers were able to discuss openly the impact of religion or belief on employees or customers. Some respondents of different religions also reported they were easily able to take time off to celebrate religious holidays.

Some employees or service users stated that they had experienced no or few negative issues in their workplace or in receiving a service which they attributed to the view of employers or service providers that religion or belief was a private matter and should not be discussed in the workplace or the service.

Some employees and students stated that they had encountered hostile and unwelcoming environments in relation to the holding, or not holding, of a religion or belief. The issues raised concerned the recruitment process, working conditions, including the wearing of religious clothing or symbols, promotion and progression, and time off work for religious holidays and holy days. Some reported that particular beliefs were mocked or dismissed in the workplace or classroom, or criticised unwelcome 'preaching' or proselytising, or the expression of hurtful or derogatory remarks aimed at particular groups.

Employees and employers reported that requests relating to religion or belief issues were not always fairly dealt with in the workplace and some called for better guidance on how to achieve this.

Many participants were concerned about the right balance between the freedom to express religious views and the right of others to be free from discrimination or harassment. Specific issues raised included conscientious objection in relation to marriage of same sex couples and how to protect employees from harassment and discrimination by staff, customers or service users with a religion. There was a marked divergence of opinion about when it was desirable and appropriate to discuss religious beliefs with service users during the delivery of a service.

A group of service providers with a religious ethos expressed concerns about reductions in funding opportunities from the public and private sectors.

Some participants viewed the current equality and human rights legal framework relating to religion or belief favourably, arguing that it provided a single robust framework to deal with discrimination and equality. Others were broadly favourable, but felt a pluralistic approach had not yet gone far enough. A third group viewed the law negatively, with some Christian employers, service users and providers considering that Christianity had lost status as a result of the legal framework. "

My own view is that I do not expect to see anything positive coming from the EHRC which so far as I am concerned is simply a waste of the taxpayers money. It is a paradox of EHRC like so many other organisations in modern Britain that is considers itself a beacon of liberal tolerance but that liberal tolerance is only extended to similarly minded tolerant liberals.   

Equality Guidance published by Catholic Bishops

A new guidance document 

Applying Equality Law in Practice: Guidance for Catholics and Catholic Organisations

has been published by the Christian Responsibility and Citizenship Department of the Catholic Bishops’ Conference of England and Wales.

The Bishops Conference says that the new Guidance 

"Will help Catholics gain a deeper understanding of this area of law and remove any misconceptions caused by its perceived complexity. It is important to note that the guide is not intended as a replacement for specialist legal advice.

The guide makes clear that if any issue arises that might lead to liability under equality law, it is strongly recommended that reader consults a solicitor or legal advisor."

About the guide, Archbishop Peter Smith, chairman of the Christian Responsibility and Citizenship Department said

"The aim of this guide is to offer some clear practical guidance on a complex area of law. It is not a substitute for taking professional legal advice but it aims to raise awareness on what the law allows and to enable potential problems to be anticipated and averted.

"There is both scope and sometimes a need for Catholics to make use of the new law’s provisions which can protect religious freedom."

Whilst the Guidance is, of course, primarily aimed at the needs of Catholics and Catholic organisations it should be of interest to any Religious Organisation looking to understand what their legal rights are

Shergil v Khaira - When can religious doctrine be justiciable ?

The Supreme Court has just issued its judgment in the case of Shergill v Khaira [2014] UKSC 33 an appeal from the Court of Appeal decision Shergill v Khaira [2012] EWCA Civ 983

The case involved a dispute between two groups of Sikhs and the trusteeship of two Gurdwaras (Sikh places of worship).  Essentially the Trustees had been removed by Sant Baba Jeet Singh Ji Maharaj, who claimed to be "the Third Holy Saint" and successor  to "the First Holy Saint", who was the founder of the Gurdwaras in the 1980s.  The Claimants asserted that Sant Baba Jeet Singh Ji Maharaj was not in fact "the Third Holy Saint" and therefore was not entitled to remove them.

In the Court of Appeal it was held that the issues in the case would require the Court to adjudicate on matters of Religious Belief or Doctrine and as such were inherently "Non Justiciable"

The principle that issues of Religious Doctrine and Belief are non justiciable in the UK Courts is of long standing.  In the House of Lords case of  Free Church of Scotland v Overtoun [1904] AC 515, at page 643, Lord Davey said 
“My Lords, I disclaim altogether any right in this or any other civil court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association”

4) This principle was restated with clarity in Blake v Associated Newspapers Ltd [2003] EWHC 1960 (QB)  where Mr Justice Gray said 
[21].. It is well-established by such cases as General Assembly of Free Church of Scotland v. Lord Overtoun [1904] AC 515; R. v. Archbishops of Canterbury and York ex parte Williamson (transcript from M Hill, Ecclesiastical Law, 2nd Ed, OUP, 2001 at 672-676) and Varsani v. Jesani [1999] CH 219 that the court will not venture into doctrinal disputes or differences.  

And also by the House of Lords in Secretary of State for Education and Employment ex parte Williamson  [2005] UKHL 15 where Lord Walker said  
  [57] . For the Court to adjudicate on the seriousness, cogency and coherence of theological beliefs is (as Richards J put it in R (Amicus) v Secretary of State for Trade & Industry [2004] IRLR 430, 436-7, para 36) to take the Court beyond its legitimate role.

In HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor [2010] EWHC 1294 (QB), and Shergill v Purewal & Anor [2010] EWHC 3610 (QB), Mr. Justice Eady and Sir Charles Gray respectively stayed Libel proceedings on the grounds that they would inevitably involve the Court adjudicating on issues of Sikh doctrine and belief and as such were non justiciable issues 

The rationale and justification for this principle of Non Justiciability in matters of religious dispute was  set out by Lord Justice Mummery in  his judgment in Shergill v Khaira [2012] EWCA Civ 983
[70] , non-justiciability is a salutary principle of judicial self-restraint. It ensures that judges do not overreach themselves and that they abstain from deciding questions that are neither appropriate for, nor capable of decision by, judicial method. Judges are not capable of understanding and deciding everything and it is not their function to do so. Judges are not omniscient. The courts they sit in are courts of law. There are matters on which a court is not competent to speak with authority, because of the limitations inherent in the nature of the judicial process, and therefore should not speak. That is so where the questions are not matters of law at all, such as subjective inward matters incapable of proof by direct evidence or by inference”.

Faced with this century of consistent legal authority one might have expected the Supreme Court to have agreed with Mummery however the Supreme Court made a rather subtle distinction of its own which may or may not erode the concept of Non Justiciability in future cases

[45] where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust

[46] The law treats unincorporated religious communities as voluntary associations. It views the constitution of a voluntary religious association as a civil contract as it does the contract of association of a secular body: the contract by which members agree to be bound on joining an association sets out the rights and duties of both the members and its governing organs. The courts will not adjudicate on the decisions of an association’s governing bodies unless there is a question of infringement of a civil right or interest. An obvious example of such a civil interest is the loss of a remunerated office. But disputes about doctrine or liturgy are non-justiciable if they do not as a consequence engage civil rights or interests or reviewable questions of public law

In this case the SC held the issues essentially involved the interpretation of a Trust rather than any asjudcation on the correctness or otherwise of religious doctrines.  In para 53 the Court returned to the founding authority on Non Justiciability  Free Church of Scotland v Overtoun [1904] AC 515 and said
 as Lord Davey said in Free Church of Scotland v Overtoun (at pp 644-645) the civil courts do not have the right "to discuss the truth or reasonableness of any of the doctrines of [a] religious association". He stated
"The more humble, but not useless, function of the civil Court is to determine whether the trusts imposed upon property by the founders of the trust are being duly observed."

The fact that the Supreme Court still clearly considers Overtoun to be good law will probably prevent this new decision opening up Court to arguments about religious doctrine but the decision has pushed the door of Non Justiciabilty open by a crack and time will tell whether that crack will be pushed open further in the future

Greece v Galloway - Town Council Prayers in the US

In the case of Town of Greece v Galloway 572 U.S. ____ (2014) the United States Supreme Court has decided that that prayers before the opening of meetings of a Town Council does not violate the Ist Amendment to the U.S. Constitution which prohibits 

"an establishment of religion".

The case has echoes of the English case of Bone v Bideford Town Council [2012] EWHC 175 (Admin) (discussed in my 10 February Blog)

The case emerged after two women filed suit against the town of Greece in New York, claiming that the town’s practice of opening town council meetings with prayer violated the 1st Amendment. The facts presented in the case indicated that the vast majority of citizens who prayed were Christians, and that their prayers were Christian in content. The women charged that this practice violated the Establishment Clause of the Constitution. They did not demand that the practice of prayers before council meetings cease, but demanded that the prayers offered should be “inclusive and ecumenical prayers” and that all references would be to a “generic God.”

The Court ruled that the practice of the Town Council did not, in fact, violate the 1st Amendment and more interestingly rejected the entire concept of requiring prayer to be “nonsectarian prayer” to a “generic God.” As the Court stated:

"To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents’ contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech."

In looking at the background to the case the Supreme Court noted that the town Council followed an informal method for selecting prayer givers, a town employee would call the congregations listed in a local directory until she found a minister available for that month’s meeting. The town at no point excluded or denied an opportunity to a would-be prayer giver. A minister or layperson of any persuasion, could give the invocation. But nearly all of the congregations in town were Christian; and  the participating ministers were too. The Town Council neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content.  On one occasion a Wiccan Priestess applied to give the prayers and was allowed to do so. 

Justice Kennedy, giving the majority ruling in the case noted that that today’s interpretation of the Constitution must be guided by the actual practices of the framers. In other words, the Constitution must not be read to forbid what the framers of the document unquestionably allowed. He also quoted with approval the memorable words of Goldburg J in Abington School District v. Schempp 

“untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular”

Justice Kennedy also added

Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.

A point regarding tolerance that our National Secular Society should perhaps think about

In a Lighter Vein - United States v Kuch

 At the end of a year when the Supreme Court has had to grapple with the, not always straight forward, question "What is a Religion" I thought it might be interesting to look back at the case of UNITED STATES of America v. Judith H. KUCH 288 F. Supp. 439; 1968 U.S. Dist. LEXIS 11703; 35 A.L.R.3d 922 where an American Federal Judge had to grapple with the same question though in rather more "interesting" circumstances

The flavour of the case can be derived from the facts set out in the judgment

"Judith H. Kuch, who avers she is an "ordained minister of the Neo-American Church", stands indicted in a seven-count indictment for unlawfully obtaining and transferring marihuana and for the unlawful sale, delivery and possession of LSD.......

Defendant by her motions to dismiss contends that the criminal penalties provided for violation of these Acts may not be applied as to her for several reasons relating in various ways to her basic contention that the laws impinge on her constitutional right in the free exercise of her alleged religion. A hearing was held and testimony and exhibits received in support of Kuch's religious claims........

The Neo-American Church was incorporated in California in 1965 as a nonprofit corporation. It claims a nationwide membership of about 20,000. At its head is a Chief Boo Hoo. Defendant Kuch is the primate of the Potomac, a position analogized to bishop. She supervises the Boo Hoos in her area,,,,,,,

A Boo Hoo is "ordained" without any formal training. He guides members on psychedelic trips, acts as a counselor for individuals having a "spiritual crisis," administers drugs and interprets the Church to those interested..... 

 the church officially states in its so-called "Catechism and Handbook" .......... "we have the right to practice our religion, even if we are a bunch of filthy, drunken bums." ......

The dividing line between what is, and what is not, a religion is difficult to draw. The Supreme Court has given little guidance. Indeed, the Court appears to have avoided the problem with studied frequency in recent years.......

Subtle and difficult though the inquiry may be, it should not be avoided for reasons of convenience...... Those who seek the constitutional protections for their participation in an establishment of religion and freedom to practice its beliefs must not be permitted the special freedoms this sanctuary may provide merely by adopting religious nomenclature and cynically using it as a shield to protect them ........

Reading the so-called "Catechism and Handbook" of the Church containing the pronouncements of the Chief Boo Hoo, one gains the inescapable impression that the membership is mocking established institutions, playing with words and totally irreverent in any sense of the term. Each member carries a "martyrdom record" to reflect his arrests. 

The Church symbol is a three-eyed toad. 
Its bulletin is the "Divine Toad Sweat." 
The Church key is, of course, the bottle opener. 
The official songs are "Puff, the Magic Dragon" and "Row, Row, Row Your Boat." 

In short, the "Catechism and Handbook" is full of goofy nonsense, contradictions, and irreverent expressions.  There is a conscious effort to assert in passing the attributes of religion but obviously only for tactical purposes. ....... 

The official seal of the Church is available on flags, pillow cases, shoulder patches, pill boxes, sweat shirts, rings, portable "communion sets" with chalice and cup, pipes for "sacramental use," and the like. The seal has the three-eyed toad in the center. The name of the Church is at the top of the seal and across the bottom is the Church motto: "Victory over Horseshit!".

The Court finds this helpful in declining to rule that the Church is a religion within the meaning of the First Amendment."

A Happy Christmas and New Year to my Reader(s)  

The Coronation Oath - A Legal Challenge ??!!

It has been reported that the National Secular Society is instructing Lawyers to consider the possibility of making a legal challenge to the Coronation Oath in particular that part where the Monarch promises to maintain the Protestant Religion

 Archbishop. Will you to the utmost of your power maintain the Laws of God and the true profession of the Gospel? Will you to the utmost of your power maintain in the United Kingdom the Protestant Reformed Religion established by law? Will you maintain and preserve inviolably the settlement of the Church of England, and the doctrine, worship, discipline, and government thereof, as by law established in England? And will you preserve unto the Bishops and Clergy of England, and to the Churches there committed to their charge, all such rights and privileges, as by law do or shall appertain to them or any of them?

Queen. All this I promise to do.

The NSS apparently wants to ensure that this part of the Oath is changed before the next Coronation.  Now leaving aside the fact that talking about the wording of the Oath for the next Coronation whilst the present Queen is alive and in good health is in exceedingly bad taste the idea that there could be a legal challenge to the Coronation Oath using the Human Rights Act 1998 is simply legal fairyland. 

To begin with neither the NSS nor anyone in it has legal standing to bring a claim since s7 of the Act says (my emphasis)

 7(1) (1)    A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(a)    bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b)    rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act
and therefore the only person who could claim to be a "victim" of the wording of the Coronation Oath is Prince Charles who will, in all probability, be taking the Oath at some unspecified time in the future. The simple legal, as well as political question is, 
"If Prince Charles does not object to taking the Oath what right has anyone else got to object on his behalf ?" 

The fact that the (miniscule) membership of the NSS may object to the wording of the Oath is irrelevant. Lord Diplock noted in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617   the need
"to prevent the time of the court being wasted by busybodies with misguided or trivial complaints" 

After all if the NSS could legally object to the wording of the Coronation Oath because they found it "objectionable" then by the same logic any group which objected the existance of the Monarchy itself could equally object to a Coronation itself on the basis that they found that "objectionable"

Finally as was noted by the Canadian Courts in O’Donohue v. Canada, 2003 CanLII 41404 (ON SC) and 2005 CanLII 6369 (ON SC)  which dealt with the position of Queen Elizabeth II as Queen of Canada the Monarchy of the United Kingdom is a Monarchy that is shared with Fifteen other Commonwealth Realms and any changes to the Coronation Oath or the rules relating to eligibility to the Throne cannot be imposed unilaterally by the Government, Parliaments or Courts of any of individual realm but have to be agreed by all the Realms.  In short any attempted legal challenge to the Coronation Oath in the Courts of the UK would be an attempt to interfere in the Government and Constitutions of fifteen other Nations

The NSS will I am sure be aware that the entire story is nonsense and no legal challenge would ever get off the ground however they have got their publicity which is I suspect all they ever really wanted

My other Blogs re the Monarchy

A Catholic Monarch ? The Act of Settlement 1701

Myths about Catholics and the Monarchy

Eweida and Others - First Views

The European Court of Human Rights decisions in the 4 cases involved in Eweida and Ors v UK  will be influential for a number of years. What is interesting is that where the European Court has agreed with the UK Courts it has often done so for other reasons and on balance even where the cases have gone against the Christians involved the legal position for religious rights is slightly better that it was previously. In particular the ECtHR has changed its previous stance that where an employee found their religious rights were infringed they should resign and get another job.

83.  Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.

The cases fall into two groups, Eweida and Chaplin which involved the right to wear a Christian Cross in work and Ladele and McFarlane which involved persons objecting to participation in work which involved endorsement of same sex relationships.  Eweida won her case the others lost theirs.  All claims were brought alleging breaches of Articles 9 (Freedom of Religion) and Article 14 (Freedom from Discrimination) of the European Convention on Human Rights

In the Eweida and Chaplin cases the UK courts had based their decisions against the Claimants in part on the basis that because the wearing of a Cross was not compulsory in Christianity its wearing was not a "manifestation" of religion for the purposes of Article 9.1 and so Courts did not have to consider whether any restrictions were "necessary in a democratic society" as required by 9.2.  The ECtHR clearly rejected this approach

Para 82.  In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question

89.  the Court considers that Ms Eweida’s behaviour was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of Article 9.

97. the Court considers that [Ms Chaplin's] determination to wear the cross and chain at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion.

In the case of Eweida the ECtHR decided that the ban on her wearing a cross was not justified in a democratic society In the case of Chaplin who is a Nurse the ECtHR decided that the restriction related not to her wearing a cross as such but rather against her wearing a cross on a chain which could be justified on Health and Safety grounds because of the nature of her work.  This seems a fair balance to make and since the Chaplin decision relates only to wearing a cross on a chain rather than in some other way there is no issue of principle preventing the wearing of a cross by NHS or other workers.  

With Ladele and McFarlane there was a conflict between rights namely the right to manifest religion and the right not to be discriminated against and for that reason the Court held that how the balance was struck was a matter for the national authorities to decide under what is known as the "margin of appreciation"

105.  The Court recalls that in its case-law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX; Smith and Grady, cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also held that same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order
106.  The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I). In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them.

Therefore the decision does not prevent the UK or any other country giving individuals such as Lilian Ladele a right to conscientious objection to participating in same sex ceremonies etc but does state that it is up to individual countries whether they give such a right.

On the issue of conscientious objection there is a 
JOINT PARTLY DISSENTING OPINION OF JUDGES VUCINIC AND DE GAETANO which is well worth reading.

2. [Lilian Ladele's] case is not so much one of freedom of religious belief as one of freedom of conscience – that is, that no one should be forced to act against one’s conscience or be penalised for refusing to act against one’s conscience. Although freedom of religion and freedom of conscience are dealt with under the same Article of the Convention, there is a fundamental difference between the two which, in our view, has not been adequately made out in paras 79 to 88 of the judgment. Even Article 9 hints at this fundamental difference: whereas the word “conscience” features in 9.1, it is conspicuously absent in 9.2 Conscience – by which is meant moral conscience – is what enjoins a person at the appropriate moment to do good and to avoid evil. In essence it is a judgment of reason whereby a physical person recognises the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed. This rational judgment on what is good and what is evil, although it may be nurtured by religious beliefs, is not necessarily so, and people with no particular religious beliefs or affiliations make such judgments constantly in their daily lives.

3.  We are of the view that once that a genuine and serious case of conscientious objection is established, the State is obliged to respect the individual’s freedom of conscience both positively (by taking reasonable and appropriate measures to protect the rights of the conscientious objector1) and negatively (by refraining from actions which punish the objector or discriminate against him or her). Freedom of conscience has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad. As the ECLJ observes, “It is in order to avoid that obeying one’s conscience must still require payment in heroism that the law now guarantees freedom of conscience.”

7.  Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal

It will be interesting to see if the case of Ladele is appealed since it raises real issue of principle which this dissenting judgement has highlighted and which deserves to be examined again. The decisions in the cases of Chaplin and McFarlane do not however raise these issues of principle and it may be sensible if they are not appealed.  With the case of Chaplin in particular any appeal raises the danger of the Appeal decision reversing or undermining the advantages for Christians obtained through the Eweida decision

Pussy Riot in a British Church

The news that members of  Pussy Riot the Russian Punk Rock band have been jailed for "performing" in Christ the Saviour Cathedral in Moscow has been widely criticised but I do feel that the question needs to be asked whether what Pussy Riot did would be considered legal in any country.

They sang and danced in front of the Iconostasis which is one of the holiest parts of an Orthodox Church whilst making the sign of the Cross and prostrating themselves in a parody of prayer.  According to the translation given on the You Tube Video (and I do not speak Russian so I cannot confirm it) the song they sang went as follows

St. Maria, Virgin, Drive away Putin
Drive away! Drive away Putin! (end chorus)

Black robe, golden epaulettes
All parishioners are crawling and bowing
The ghost of freedom is in heaven
Gay pride sent to Siberia in chains

The head of the KGB is their chief saint
Leads protesters to prison under escort
In order not to offend the Holy
Women have to give birth and to love

Holy shit, shit, Lord's shit!
Holy shit, shit, Lord's shit!

(Chorus)  St. Maria, Virgin, become a feminist
Become a feminist, Become a feminist  (end chorus)

Church praises the rotten dictators
The cross-bearer procession of black limousines
In school you are going to meet with a teacher-preacher
Go to class - bring him money!

Patriarch Gundyaev believes in Putin
Bitch, you better believed in God
Belt of the Virgin is no substitute for mass-meetings
In protest of our Ever-Virgin Mary!

(Chorus)  St. Maria, Virgin, Drive away Putin
Drive away! Drive away Putin!  (end chorus)

So by any definition the incident involved Pussy Riot shouting obscenities in a Church whilst worshipers were there, disrupting a service, shouting insults about the Orthodox Church and parodying worship.

In Britain that would constitute a criminal offence contrary to 

s2  Ecclesiastical Courts Jurisdiction Act 1860

Penalty for making a disturbance in churches, chapels, churchyards etc
Any person who shall be guilty of riotous, violent, or indecent behaviour in England in any cathedral church, parish or district church, or chapel of the Church of England, or in any chapel of any religious denomination, or in England in any place of religious worship duly certified under the Places of Worship Registration Act 1855, 18 & 19 Vict c 81, whether during the celebration of Divine service, or at any other time, or in any churchyard, or burial-ground, or who shall molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any preacher duly authorised to preach therein, or any clergyman in Holy Orders ministering or celebrating any sacrament or any Divine service, rite, or office in any cathedral church or chapel, churchyard, or burial ground shall on conviction thereof before two justices of the peace, be liable to a penalty of not more than level 1 on the standard scale, or may, if the justices before whom he shall be convicted think fit, instead of being subjected to any pecuniary penalty be committed to prison for any time not exceeding two months.

Under s28 of the Crime and DIsorder Act 1998 a "Religiously Aggravated Offence" is committed 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" is defined as
"a group of persons defined by reference to religious belief or lack of religious belief."

So Pussy Riot could have been convicted in England of a Religiously Aggravated Offence probably either s5 or s4A of the Public Order Act. Section 4A carries a 2 year maximum sentence when it is an aggravated offence and s5 caries a fine 

Intentional harassment, alarm and distress - Public Order Act 1986, s. 4A
(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, 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,
thereby causing that or another person harassment, alarm or distress.

Harassment, alarm and distress - Public Order Act 1986, s. 5

(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.

There is also the offence of Aggravated Trespass under s68 Criminal Justice and Public Order Act 1994 which carries a sentence of up to 3 months imprisonment and which says 

Offence of aggravated trespass.

(1)A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
(a)of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b)of obstructing that activity, or
(c)of disrupting that activity

Since the words "sung" were not threatening the Pussy Riot group could not have been convicted in Britain of the Offence of Incitement to Religious Hatred  but they would still have faced the likelihood of prosecution and possible imprisonment though not for the possible sentence that they received in Russia

Whilst I personally think the sentence was excessive there is one aspect to the incident which has not been commented on in the British media and may explain why Orthodox believers in Russia were quite so outraged.  The Cathedral of Christ the Saviour is of special importance.  It is a reconstruction of a Cathedral which was deliberately destroyed in 1931 as part of the persecution of Christians in the Soviet Union .  During this persecution groups such as the League of Militant Atheists often desecrated Churches and engaged in parodies of religious ritual whilst singing obscene songs.  

In the West we seem to have almost forgotten Communism and the evils it brought but people in Russia have not.  I notice that in Court one of the Pussy Riot demonstrators wore a T Shirt bearing a clenched fist and the words "No Pasaran" which was a slogan of the Spanish Communist Party during the Spanish Civil War.  It was a bit like appearing in a German Court wearing a T Shirt with a Nazi Slogan.  In those circumstances perhaps it is not surprising if Russians have taken a rather less rosy eyed view of the incident than that of the Western media

 

 

Crosses Turbans and Hijabs

It has been reported that the Government has replied to various cases before the European Court of Human Rights regarding the wearing of the cross by Employees. The Governments view, and that of the Courts would appear to be that bans on the wearing of a cross are OK because the wearing of the Cross is not compulsory in Christianity, therefore the wearing of the Sikh Turban or Islamic Hijab cannot be prohibited but the wearing of a cross can be.

My big worry with this approach is the idea that a Secular Government and Secular Courts are allowed to discriminate between Religions based on Theological points within the religions themselves. There seems no awareness that this distinction is itself discriminatory because it gives a privileged legal position to those religions with specific and detailed rules as against those with more flexible rules.

More to the point the distinction misunderstands the nature of religious practice which is often a complex mixture of rules, beliefs, customs and rituals which often may not be formally prescribed but which are nevertheless regarded by religious believers as integral parts of their faith. The Second Council of Nicaea 787 noted that "the sacred and life-giving cross is everywhere set up as a symbol" and for Millenia the wearing of a cross by Christians has been regarded as a fundamental custom and practice of most Christians even though it has not been been formally required as an obligation of faith.

Therefore to attempt to distinguish between the wearing of a cross and the wearing of a Sikh Turban or Islamic Hijab on the basis that one is required but the other is not is to create a completely theologically illiterate, an artificial and an unrealistic distinction. It is an approach that goes against the fundamental principle of a secular society with secular courts because it involves secular Courts making religious decisions as to what is or is not compulsory in a religion.

What is also worrying is why the Courts and now government have adopted this approach. Article 9 of the European Convention of Human Rights says

Article 9 Freedom of thought, conscience and religion 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. 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.

What the Courts and Government are saying is that the wearing of a cross is not a "manifestation" of religion because it is not compulsory therefore restrictions on the wearing of a cross do not have to be justified under Article 9.2 as being restrictions which are "necessary in a democratic society".

I suspect that most fair minded secularists and atheists would accept that the wearing of a cross by a believing Christian is a "manifestation" of the Christian faith even if they think that that manifestation should be restricted or banned along with the manifestation of other forms of religion. If so then those Atheists and Secularists would be being more fair minded towards Christians than the British Courts or the British Government.

Council Prayers

And now for the completely Bizarre Legal decision Bone v Bideford Town Council [2012] EWHC 175 (Admin)

In this case a Town Councilor objected to fact that Council meetings started with prayers. The procedure was that the Mayor entered the Council Chamber and then there were prayers led by a Minister or Priest chosen in rotation from one of the 8 Churches in the Town. After prayers apologies for absence were taken and the meeting carried on, no Councilor was obliged to be present during the prayers and the custom dated back to Elizabethan times.

An objection was raised by a Mr Clive Bone who is an Atheist and was for a few years a town Councilor. He objected to the Prayers and, as is his right, he raised the issue in the Council. Para 8 of the Judgment explains

"There had been no objection to the practice until Mr Bone was elected in 2007. He made no complaint for 9 months, and then in January 2008 he proposed a motion that prayers cease: it was a tradition no longer appropriate, which could deter some from seeking office, contrary to equality policies. His motion was defeated by 9 votes to 6, with 1 abstention. He withdrew a similar motion in March 2008, but in September 2008 put forward another motion which would have replaced prayers with “a short period of silence”. This was defeated by 10 votes to 5. A campaign by humanists and the National Secular Society then ensued. This litigation is part of that campaign".

In simple terms therefore Mr Bone lost two democratic votes and then decided to use the law to force his views on his colleagues. He based his case on breach of his Human Rights under Article 9 of the European Convention on Human Rights and Belief Discrimination contrary to the Equality Act 2010 and had he won on either of those grounds then the decision might well have had significant implications for the practice of public prayers at a range of events including Remembrance Day and the opening of Parliament (when Her Majesty the Queen expresses the hope that God will guide the members of Parliament in their deliberations) but he lost on both of these points of principle.

He won however on an extremely narrow point of interpretation of s111 Local Government Act 1972 which says that
"a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

As a lawyer I find the decision bizarre I could almost find it easier to understand a decision based on breach of Article 9. The basis of the decision seems to be the legal concept of "ultra Vires" which prevents public bodies engaging in actions which are not permitted by legislation. However the Ultra Vires doctrine like all doctrines is subject to the old idea that "the law is not concerned with trifles" which in modern context is usually expressed as the concept of proportionality. By any rational analysis it seems wholly disproportionate to say that a local ceremony which has lasted for hundreds of years is unlawful merely because it is not specifically mentioned in legislation.

Also bizarre is what the Judge said at para 27
"I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment. The majority acknowledge such response or feelings to be ones which it is right to accommodate; such feelings are in that sense a reasonable response to the course of action preferred by the majority. I appreciate that the saying of prayers may cross party lines, but I cannot see that it would be different from incorporating some other form of religious or secular but potentially divisive ceremony, such as the singing of a political party’s song, into the meeting."

On the basis of that paragraph if the Council were to meet on November 11th and was to incorporate into its Agenda a 2 minutes silence in remembrance of the War Dead that would also be illegal if a pacifist objected on the basis that this "secular ceremony" (to use the Judges own designation) was divisive towards pacifists

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.

Italian Crucifix Case - Grand Chamber Judgment

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."