Magna Carta

Today 15th June 2009 is the 794th anniversary of the signing of Magna Carta by King John. To commemorate is I reproduce below an article I had published in the Times Legal Section July 11th 2000 when lawyers were getting all excited about the coming into force of the Human Rights Act. I think the article is still relevant and true today and so I reproduce it below.

Happy Birthday Magna Carta

"On the 15th July 2000 the American Bar Association will be visiting Runnymede to rededicate its monument to Magna Carta. It is perhaps appropriate that this event is happening in the year in which the Human Rights Act is due to come into force since it may help to put that piece of legislation into some historical perspective.

Magna Carta was signed on 15th June 1215 by King John one of the most famous, or infamous, Kings in English history. The reality is that John was probably a better King than his romantic elder brother Richard the Lionheart who spent his entire reign abroad fighting the Saracens, the French and anybody else who got in his way. King John however was not a 'Lionheart' his nickname was 'Softsword' and within fifteen years of becoming king he had lost Normandy to the King of France, subjected England to a papal interdict and alienated almost all sections of society.

John signed Magna Carta to avoid a Civil War he would undoubtedly have lost. His situation at Runnymede being summed up in a Lancashire poem,

"You'd best sign at once" said Fitzwalter
If you don't I'll tell thee for a start
The next coronation will happen quite soon
And you won't be there to take part"

Mediaeval society relied heavily on charters. Every borough, abbey or manor had its charter setting out its own peculiar rights and privileges which even the King was obliged to respect. At Runnymede this concept was, for the first time, extended to the entire country just at the time that the common law was beginning to be developed. The principles of Magna Carta therefore became an integral part of the common law itself and therefore part of the heritage of America and the Commonwealth.

The separation of powers which is today recognised as an essential part of a democratic society developed in England because of Magna Carta. Articles 12 and 14 provided that no tax (scutage or aid) could be imposed unless agreed to by the 'common counsel' of the realm i.e. Parliament. Articles 17 and 18 provided that courts of justice no longer followed the royal court but were instead held in London or in local assizes held at fixed times of the year and out of this developed professional courts and judiciary. Article 39 confirmed that no-one could be convicted of any offence save by the "judgement of his peers" i.e. trial by jury. ( In the same year as Magna Carta the English church refused to sanction further use of trial by ordeal )

Because of these developments by 1608 Chief Justice Cope was able to tell James 1 that even though he was King he was still subject to "God and the Law " and the 1688 Bill of Rights proclaimed that it was not claiming new rights but was instead affirming 'ancient rights'. In France by contrast Louis XIV was proclaiming " L'etat et moi " and royal autocracy persisted in Germany and Russia until 1918.

Reading Magna Carta today it is easy to dismiss it as merely of historical relevance. References to "Scutage" and "Assizes of darrein presentment" make it appear quaint and irrelevant to the modern age but within it there are phrases which are as relevant today as they were in 1215.

Article 40 "To none will we sell, to none deny right or justice" should perhaps be engraved on the Pugin wallpaper in the Lord Chancellor's office for him to contemplate when considering the level of court fees and the policy of making the courts self financing.
Article 39 "No freeman shall be taken or imprisoned ... save by the lawful judgement of his peers" is the basis of trial by jury which may be regarded by the Home Secretary as little more than an expensive legal technicality but which is regarded across the Atlantic as a fundamental principle of democratic society.

As recently as August 20th 1998 the Canadian Supreme Court in a judgement referred to Magna Carta as part of the constitutional and legal heritage of Canadians. The American Declaration of Independence mentions attempts to restrict jury trial as one of its justifications and in both America and Canada the Magna Carta creation of Trial by Jury is today protected as an absolute constitutional right.

On 1st October 2000 the European Convention on Human Rights is to incorporated into UK law. There is however little point in making a great fanfare about 'new rights' if we do not remember, respect and preserve the rights we already have. We are not a state emerging from Fascism or Communism and having to start from scratch to build a democratic society. We are the descendants of Magna Carta and the inheritors of a long and successful legal tradition which has evolved over 785 years. Human Rights is not some gift England is being given from Europe. Human Rights was England's gift to the world !"

Catholic Adoption Agencies lose case

The news that the Catholic Adoption Agencies had lost their their case before the Charity Tribunal is sad but was certainly not unexpected, at least as far as I was concerned.

What the agencies were trying to do was to change their objects so as to add the following

"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"

They argued that this would enable them to operate because of the exemption for Charities under reg 18 of the Sexual Orientation Regulations 2007
which say

"18.—(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"

From a legal point of view the Tribunals decision seems to me to be very questionable, the Tribunal said (para 21)

"regulation 18 could not be relied upon by the Appellant to permit activity which was no longer permitted, or which was made unlawful, by another regulation. As the Preliminary Ruling made clear, this was because the Tribunal understood regulation 18 to permit discrimination by charities only when their activities did not stray into the areas covered by the other regulations"

Frankly that is a legally fatuous remark and completely circular reasoning since if reg 18 only applies to activities which are not covered by the SOR's anyway then why would any Charity need to rely on reg 18 at all ? Before the comments section of this Blog gets overload I should add at this point that reg 18 is not some sinister " legal loophole" in the SOR's designed by cunning homophobes, it is the standard type of exemption given to Charities in every other area of Discrimination legislation so as to permit Charities(and we are only talking about Charities) to offer specific services to Women/Specific Races/Specific Nationalities/People with specific disabilities etc. If the Charity Tribunal decision stands unchallenged then every other Charity is now subject to every other type of Anti-Discrimination legislation and, incidentally, the commission decision makes it more difficult for there to be specific Charities providing services for Gay and Lesbian people.

However the irony is that even had the Catholic Charities won their case before the Tribunal it would have been a pyrrhic victory. As the Tribunal pointed out local authorities would refuse to deal with an Adoption Agency which was clearly and directly discriminatory in its objects and the Agency in that situation would have had no way to challenge such a refusal by a local authority.

Leaving aside the fact that the potential views of local authorities should have been irrelevant to the decision the Tribunal was supposed to be making which was whether the proposed change in objects was legal or not; the Tribunal was undoubtedly correct in their analysis. That is why I, as Director of the Thomas More Legal Centre have been advising Adoption Agencies for a year that they should amend their objects to read as follows

"The Charity shall not have power to engage in any activity which it knows, or reasonably believes, is contrary to the teaching of the Catholic Church; the formal opinion of the Bishop of [ ] shall be final in any question as to what is the teaching of the Catholic Church”

Such a provision in the objects of the Charity would, of course, have prevented them choosing either same sex, or unmarried heterosexual couples, as adoptive parents and they would have had to concentrate on married couples who according to the teachings of the Church (and millenia of human experience) are the appropriate unit to raise and nurture children. Had a local authority then refused to deal with one of the Catholic Agencies then the local authority would itself have been acting illegally by engaging in Religious Discrimination. Why none of the Catholic Agencies even tried this route I do not know. It certainly could not have been any more unsuccessful than the route they did choose.

Proposition 8

Everyone has probably heard that the California Supreme Court has backed Proposition 8 which was a referendum held at the time of the US Presidential Election and which incorporated into the California Constitution a legal definition of Marriage as being between a Man and a Woman. The passing of Proposition 8 has stopped same sex marriages being performed in California.

Without going into the merits of all the arguments about same sex relationships i thought the following two legal points might be of interest.

The Mormon Church has been heavily criticised by gay rights activists over its support for monogamous heterosexual marriage but it is worth remembering that in the 19th Century Mormons were themselves forced to accept this legal definition of Marriage or face imprisonment, see Reynolds v. U.S., 98 U.S. 145 (1878). Mormons practiced Polygamous (or plural) marriage which was a requirement of their religion. In response to this action by the Mormon Church Polygamy was outlawed by the US Government which stated that only monogamous marriage could have legal status and the US Supreme Court defended this legal ban on polygamous marriage by reference to the historic understanding of marriage in western society. There is an argument, which is already being pursued in Canada, that if the historic definition of marriage as one man and one woman is no longer legally valid then laws against polygamy are similarly legally invalid.

Also it is worth noting that the argument is solely over the term "marriage" Californian law already permits Same Sex "Domestic Partnerships" which are basically the same as Marriage but without the name. In the UK we adopted the same approach with Civil Partnerships so Britain is neither better, nor worse, than California (except of course for being rather wetter)

Religious Freedom in England Today

( On the 20th May I gave a talk on Religious Freedom to the Young Catholics Group at the Brompton Oratory a number of people have asked me for a copy of what I said so here it is)

I begin by referring to a story that some of you may have heard of, a couple of years ago a Crematorium in Devon removed its crosses on the basis that they did not want to Cause Offence” to non Christians and in particular to Muslims. The subject of this Crematorium was subsequently discussed in the House of Lords during the debate on the 2006 Equality Bill when various speakers discussed ways of making Crematoriums “Muslim friendly”. Two points are worthy of note during this debate, firstly hardly anyone discussed the offence caused to Christians by the removal of the Cross, and secondly absolutely nobody in the debate was aware, or bothered to find out, that Muslims do not use Crematoria because cremation is against their religion. The moral of this story is that one should never underestimate the ignorance of public officials when dealing with religious issues also when actions are taken against Christianity and Christian symbols in the name of a multi faith society invariably these actions are taken in the name of minority religions but are not actually done at the request of those religions.

But let us look at some other stories in the media recently, a man who used to cut the grass outside his house has been told to stop because of “Health and safety fears”, a schoolgirl who asked her teacher if she could move to another group of girls because all the girls in her group were talking to each other in Urdu ended up being arrested, yes arrested, for alleged “racism” and finally a case I am sure you have all heard of the Nurse Caroline Petrie who was threatened with the sack for offering to pray for a patient. In theory only one of those three stories involve religion yet I would suggest that in fact they all demonstrate the same problem, petty minded officiousness, obsession with rules, a tendency to take offence at simple conversations, a lack of any sense of proportion, a lack of any desire to live and let live and in general a lack of simple old fashioned common sense.

And so the theme of my talk today is that the issue of religious freedom in this country cannot be considered in isolation from other issues of freedom in our society. I could regale you with tales of attacks on Christians and Christianity but to do so would I believe mask the real problem. These attacks on Religious freedom are symptomatic of wider attacks on freedom and of a lack of respect for the idea of freedom, and so if we want to defend freedom of religion then we have to defend the idea of freedom itself. Whether it is foxhunting, smoking, adoption agencies, or microchips in rubbish bins, we are in society which is increasingly intolerant, repressive, regulated and untrusting and in consequence we have officials who are dictatorial, interfering and untrustworthy.

One of the areas where I have become increasingly aware of this tendency is advising Doctors, Nurses and Pharmacists who have conscientious objections to assisting in any way with Abortion referrals or the giving out of the “morning after pill”. Their right to moral conscientious objection is simply being dismissed as “imposing your morality on others” which ignores the fact that to make somebody do, or participate in, something they consider to be immoral is in itself to impose a view of morality. It is strange that during the war when our country was facing the danger of foreign invasion we accepted the right of conscientious objection yet today we are increasingly unwilling to permit conscientious objection. The case of the Marriage Registrar Lillian Ladelle is a case in point. She did not want to participate in same sex civil partnerships and so she made arrangements that ensured that others who had no moral objections dealt with those ceremonies whilst she carried out ordinary Marriages. It was agreed by her employers that no same sex couple had ever been disadvantaged by her actions and no civil partnerships were cancelled or delayed because of her nevertheless her employers refused to allow this pragmatic solution to continue. In simple terms they had no respect for her conscience and were not willing to show any tolerance or compassion towards her.

But this refusal to recognise the legitimacy of conscience and morality has consequences for our society that go far beyond the issues of Abortion or Homosexuality themselves. When we look at our current controversy over MP’s expenses the constant refrain that is coming back from so many MP's is that what they did was “in accordance with the rules” but what is missing in this response is that they never considered whether what they were was morally right or wrong and that I suggest epitomises a broader problem in our society; we are not showing respect for conscience and the desire not to do that which is morally wrong because we are no longer acknowledging the importance of morality itself and are instead fixated on mere legalism and rules. As a lawyer I am constantly dealing with the efforts of government to legislate on everything and the consequence is that politicians are infantalising us as a society by removing our ability to think in moral terms. The result is that we have more criminal legislation that ever before and more crime, more financial regulation and more fraud, more interference by government officials in all aspects of life and more government failure and incompetence.

Contrary to what several Christian organisations are saying I do not consider that we are in an era of anti-Christian persecution; indeed to suggest that we are demeans the word persecution and those many Christians who are suffering real persecution to the point of death. What we are in is an era of increasing government interference and regulation of what used to be regarded as private life and an increasing intolerance of those who disagree. We are in an increasingly authoritarian society and the Church is always the first victim of authoritarianism because the Church exists as an organisation that is, or should be, independent of the State and which has a basis for its motivation and thinking which is independent of the state.

That does not however mean that the Church does not respect or obey the laws of the state, on the contrary Christianity has always taught respect for the legitimacy of government and the civil authorities, “render unto Caesar that which is Caesars and unto God that which is Gods” is both a political and a theological principle. It is however a principle which depends on mutual recognition of mutual rights. What we have today is a governmental system which does not acknowledge the right of religion to have its own sphere nor does it respect the right of religious organisations to defend their own identity and to preserve their own integrity.

The new Equality Bill currently before Parliament epitomises this tendency. Nearly every form of Discrimination is banned even for private associations and Churches, or to put it another way, they are to lose the right to choose. Churches are to be banned from preferring Christians in their employment practices except in the employment of Priests or religious teachers, they are not going to be allowed to insist that employees live in accordance with the ideals or principles of the Church, and any employment or membership decision they take can be questioned and investigated by an unelected quango the Equality and Human Rights Commission.

All of this is done in the name of equality and with the clarion call by politicians that religions must not be allowed to discriminate however there is a gross hypocrisy at the heart of the non discrimination agenda because politicians are not imposing on themselves the principles that they insist on imposing on others. In simple terms it is perfectly legal to discriminate on the grounds of political opinion and political membership and political parties are free to discriminate in their recruitment policies, the Labour Party would not employ a member of the BNP in any capacity, and the Conservative Party would not employ a card carrying Communist, why then should a Church be obliged to employ people whose religion or lifestyle is incompatible with the beliefs or principles of that Church ? I make the point that I do not believe that Political Parties should be obliged to employ people whose political beliefs or activities are incompatible with their own; Political parties are entitled to preserve and defend their distinctive identity; I just make the point that religious organisations should be entitled to the same freedom to preserve their identity.

As the Governments proposals stand I, as a Roman Catholic, would be entitled to apply for the post of General Secretary of the Muslim Council of Britain and to sue if I was not appointed and a card carrying member of the National Secular Society would be entitled to apply for the post of Secretary to the Catholic Bishops conference. It is lunacy and more than lunacy it is dangerous to freedom and democracy because democracy requires not just individual freedom but also freedom of association, we need to defend the principle of civil society in which associations and organisations as well as individuals have rights and are allowed the freedom to preserve their distinctive nature and contribution to society as a whole and it is no coincidence that the first thing any totalitarian state does is to regulate and control associations, organisations and churches. We need to be alert to this danger and we need to defend the rights of Churches and other organisations not simply in order to defend religious freedom but in order preserve freedom itself.

In addition to defending freedom of association we also need to defend freedom of speech and in particular the freedom of private conversation. Some years ago I had the privilege of representing Joe and Helen Roberts a retired couple in Fleetwood in Lancashire who rang up their local Council to complain about its decision to put gay friendly literature in public buildings. Instead of the local council regarding this as a legitimate expression of opinion the diversity officer of the Council reported Joe and Helen to the Police who sent two large Police officers equipped with stab vests and handcuffs to lecture Joe and Helen for 80 minutes and to threaten them with prosecution for a non existent “Hate Crime”. Recently there was the case of a social worker in a care home who was suspended following a private conversation about homosexuality, and of course the well known case of Carol Thatcher and her Golliwog conversation, I ask myself and I ask you, what happened to the idea of a private conversation, what happened to the idea that this is a free country where people are entitled to their own opinions ?

We as Christians cannot separate ourselves from the society in which we live nor should we want to do so, similarly we cannot separate the defence of our religious freedom from the defence of freedom itself.

If you read the history of life in Nazi Germany, or the Soviet Union or the East German Stasi one point is very clear and consistent totalitarian states do not recognise or respect the distinction between private and public life, in a totalitarian state there is no such thing as a private conversation. In George Orwells great novel 1984 the hero Winston Smith describes how everyone lives with the knowledge that everything they say can be monitored, the smallest deviation from the official orthodoxy will be reported and everyone lives with the fear that one day they will be visited by the thought police. The novel is set in Britain1984 but it too close for comfort to the reality of Britain 2009.

1984 was, of course, written in 1948 just after the war when people were aware of the price of freedom and the fact that freedom needed to be defended. In 1945 a film was released called “ A Matter of Life and Death” it involved David Niven as an RAF pilot who is supposed to die in his plane but who survives and who subsequently has to argue with God for his right to continue to live. Part of the film involves a trial in heaven with an argument about England and freedom, and one of the main characters says “In England a man can think and speak as he likes on religion and politics”. As I said the film was released in 1945 and so it was made at a time when British people were fighting and dying to defend an England where “a man can think and speak as he likes ”, this is a noble vision of England as a nation of free people but it is an England that we are allowing to die and it is a England we need to fight to defend because an England where freedom is protected and respected is an England worth fighting for.

Religious Symbols v Religious Beliefs

The judgement in the case of Ghai v Newcastle City Council [2009] EWHC 978 (Admin) is now available. Mr Ghai wanted the right to have his body cremated in the open air once he died. His claim that the Cremation Act 2003 was unlawful under Article 9 of the European Convention was, not surprisingly, rejected but I do have a lot of sympathy for him. He wasn't asking for the right to have a Cremation in his back garden but that the law should allow there to be places in Britain where open air cremations can be held. It wasn't an unreasonable request and it is sad that the Government hasn't done anything to meet it.

At the same time as Mr Ghai was losing the strange case of Sanatan Dharma Maha Sabha v Attorney General of Trinidad and Tobago [2009] UKPC 17 was being reprted. In this case the Privy Council agreed with an earlier decision of the High Court of Trinidad and Tobago that a particular award "The Trinity Cross of the Order of Trinity" was discriminatory to Muslims and Hindus under the provisions of sections 4(b), (d) and (h) of the Trinidadian Constitution on the basis that the Cross is a Christian Symbol. The name "Trinidad" is of course itself Christian being the Spanish for "Trinity" and therefore a reference to the Holy Trinity. The case could conceivably have implications for British awards such as the Victoria Cross, George Cross, Military Cross etc. Interestingly both the Trinidadian Court and the Privy Council took a very different approach to that of the US Courts in the case of American Atheists Inc v Utah Highway Patrol Association (US District Court November 20 2007) where an attempt to have memorial crosses declared "unconstitutional" because they represented a Christian Symbol was rejected, the court holding that the cross was not an exclusively religious symbol

What these two cases have in common is that they both seem to lack any sense of proportion. Allowing properly organised outdoor Cremation would not be difficult or cause problesm but it remains banned, meanwhile the fact that historically awards have, for centuries, been expressed as Crosses, the VC, MC, DFC etc is ignored. What next will the Royal Navy have to change the White Ensign because it bears the St George Cross ? In my view cases like this do nothing but harm to Community relationships.

What do we mean by ‘A Secular Society’ ?

(On the 28th April I was asked to speak in a Seminar at Lancaster University organised as part of the AHRC/ESRC Religion & Society Programme www.religionandsociety.org.uk . The theme of the Seminar was "Religious Rights in a Secular Society" and I set out my contribution below)

In many respects I feel I have come to this seminar on false pretences. I am here to take part in a Seminar on the role of Religion and Belief in a Secular Society and I am going to begin by questioning the entire philosophical basis of this Seminar namely the presumption that Britain is a Secular Society or that we even know or agree on what the term “a secular society” really means. Does it mean an Atheistic Society or a Multi-Faith Society, a society which is tolerant towards all religions or a society which sees religious belief as a form of deviation from the norm. To put it in the form of a question, if Britain is a Secular Society then does that therefore mean that religious believers are not truly part of British Society ?

Part of the problem therefore is defining what exactly we mean by a Secular Society. In general debate, and no doubt today the idea will be of an irreligious or perhaps anti religious society. Certainly in general debate Secularism and Secular seem always to be assumed to be alternatives to religious belief but I question whether that need to be the case. In many respects Christianity created the Secular idea with Roman Catholic parish priests being known as Secular Clergy because they live “in the world” as opposed to living in a religious community such as a Monastery. The general tradition of Western Christianity in all its forms recognises the legitimacy and independence of Secular Government which itself is required to recognise the legitimacy and independence of religion , ‘Render unto Caesar that which is Caesars, and unto God that which is Gods ’ is a foundational principle of western political as well as religious thought.

Therefore there is no inherent conflict between Secular and Religious unless we define ‘Secular’ in such a way as to mean anti-religious, and I suggest that that is indeed the way “Secular” is increasingly being interpreted especially in Europe. This point was noted by Pope Benedict XV1 in his 2008 visit to the United States when he praised American State secularism as “healthy secularism,” and “a fundamental and positive model” in contrast to an aggressive, and by implication European, Secularism which is anti-religious. So what form of Society is Britain, is it in fact a Secular Society and if it is does that necessarily mean that it must be an anti-religious Society ?

In deciding whether Britain is in fact a Secular Society one point cannot be ignored Britain is not a Secular State. This fact was noted by the Court of Appeal in the case of Shabina Begum . You may recollect that in this case Shabina took her School to Court under Article 9 of the European Convention on Human Rights (Freedom of Religion) claiming the right to wear the Islamic Jilbab in School, she lost in the High Court, won on a technicality in the Court of Appeal and lost resoundingly in the House of Lords. Part of the reason why she lost was because of the European Court of Human Rights case of Leyla Sahin which involved a Turkish trainee doctor who was not allowed to wear an Islamic Headscarf in Istanbul University. The European Court of Human Rights backed the Turkish ban as being necessary to protect the status of Turkey as an avowedly Secular (Laik) state and Shabinas’ School relied on the Sahin case in order to justify its ban on the Jilbab. The Court of Appeal however rejected the relevance of the Sahin case on the specific basis that Britain is not a Secular state (Paras 74, 94).

The House of Lords did overrule the Court of Appeal and applied the Sahin decision on the basis of the principles of legal precedent but nevertheless I do think the Court of Appeal were making a valid point; England and Scotland retain established Churches, throughout the UK Governments, both UK and Devolved, permit denominational schools, and the British Constitution requires the Head of State to be a Protestant Christian. All of these facts may be objectionable to many who would wish to see Britain become a formally Secular State but the point has to be faced that those who want to see Britain become a Secular State have not won their argument or achieved their objective and Britain has not chosen to become a Secular State. Therefore if the British people acting through their democratic institutions have never chosen to turn Britain into a Secular State why should this Seminar presume, without question, that the British people have nevertheless chosen to become a Secular Society ?

However even if Britain is not a Secular State it is equally clear that it is not a Theocratic State. On one occasion a leading Secularist did suggest to me that Britain was in fact a Theocratic State because of the presence of 26 Church of England Bishops sitting in the House of Lords; this seemed to me to ignore the fact that the Bishops of the Church of England are appointed by the Prime Minister whilst if Britain was in fact a Theocratic State then the Prime Minister would be appointed by the Bishops, however I digress. Britain is neither a Secular nor a Theocratic State what it is, is a State which endorses and protects Religious and Irreligious freedom.

This is not a mere theoretical quibble, as a lawyer I find the concept of “Religious Rights in a Secular Society” a highly dangerous concept which is far more problematic than the concept of Religious Rights in Secular State. Rights, whether religious rights or other rights, are legal concepts and to be meaningful rights have to be recognised and protected by law and if we were a formally Secular State then religious rights, or any restrictions on those rights, would be laid down and governed by the Constitution and laws of that Secular State. A Secular State is a legal concept but a Secular Society is not and therein lies the danger, who or what defines the limits and limitations of a Secular Society, we the intellectuals gathered in this room, the Commissioners of the Equality and Human Rights Commission or the Editor of the Guardian ? The concept of defining Religious Rights within the amorphous concept of a “Secular Society” seems to me to be fraught with difficulty and makes rights subordinate not to objective standards of law but instead subject to subjective personal opinion and arbitrary bureaucratic tyranny.

Despite my reservations about the concept of a Secular Society I accept that there clearly are issues within British Society about where Religion fits in and what its role and rights are and in principle that is a natural and desirable development as the demographic, racial and religious nature of our society develops and changes. What is however a questionable development is the fact that the legitimacy of religious opinion per se is now coming into question in a way that has not been seen since the repeal of the Anti-catholic Test Acts in 1829. This can be seen in the way in which the right of Ruth Kelly to be the Equalities Minister was repeatedly questioned because of her Catholic faith and more prominently in the refusal of the European Parliament to accept the appointment of Italian Politician Rocco Buttiglione as a European Commissioner because he stated, in response to a direct question, that he believed Homosexuality was a sin. Can I lay stress on the word “sin” which is a religious and not a Secular concept.

It is perhaps worth noting that what happened to Rocco Buttiglione would be contrary to the principles of the Virginia Statute for Religious Freedom which was drafted by Thomas Jefferson and passed by the Virginia legislature in 1777 and which states

“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”

It does seem therefore that the European Parliament in 2004 had a lower commitment to Religious Freedom than the Virginia Assembly of 1777

The relevance of the Virginia Statute is that the United States is the oldest Western Secular State with the separation of Church and State laid down in the 1st amendment to the US Constitution and the views of Jefferson, who also drafted the Declaration of Independence, are still regarded as relevant in determining the meaning and intent of clauses in the US Constitution.

Britain, of course, is not governed by the 1st Amendment but has its European equivalent in Article 9 of the European Convention on Human Rights which was incorporated into UK law by the Human Rights Act 1998. It is perhaps significant that much of the Article 9 Case Law has come from Turkey and France which are both avowedly Secular States which have successfully argued for a view of Article 9 which both the Court of Appeal and the House of Lords have accepted as “erring on the side of strictness” . I have already referred to the Turkish Case of Leyla Sahin regarding the wearing of the Islamic Veil in Istanbul University and there is also the recent case of Mann Singh supporting a French rule prohibiting a Sikh from wearing his Turban in his driving licence photograph. However though Britain has incorporated Article 9 into our law we are not a Secular State like France or Turkey and we do not necessarily follow their restrictions, Sikh Police Officers, for example, happily wear the Sikh Turban as part of their uniform and, more controversially, Muslim Police women are allowed to wear the Hijab as part of their uniform, though not in America.

I return to the point that Britain is not a Secular State and we restrict our thinking if we talk in terms of “Religion within a Secular Society” which is, I suggest, an inherently divisive and confrontational concept because it implies that religious believers are separate from the rest of society and that any accommodation to Religious beliefs is contrary to the interests of society as a whole. Also what model of secularism do we follow, French ‘Laicite’ and Turkish ‘Laik’, the 1st Amendment of the US Constitution or Article 124 of the Constitution of the USSR which recognised “Freedom of religious worship and antireligious propaganda”. The supreme Court of the USA has protected the 1st Amendment and thereby the Secular nature of the United States for over 200 year but has never implied that because the US is a Secular State that means that America must also be made into a Secular Society. As Mr Justice Douglas said in Zorach v Clauson

“We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma”

I suggest that it is significant that USA only set out to create a Secular State whilst the USSR set out to create a Secular Society with inevitable consequences of Totalitarianism and restrictions on all forms of freedom not just religious freedom. There is a danger, and I put it no higher than that, of the concept of “Religious Rights in a Secular Society” being interpreted so as to justify a repressive and intolerant attitude towards religions and religious believers who are subtly defined as outsiders from Society, at best merely tolerated, at worst sidelined and silenced.

I suggest that the idea of “Religious Rights within a Secular Society” is fundamentally inconsistent with the idea of legal rights as such and changes the meaning of religious freedom which ceases to be part of the general freedoms enjoyed by all citizens and instead become mere concessions to a minority group which are at the mercy of the majority. I suggest that it would be more constructive to concentrate on the idea of “Religious Freedom within a Free Society” and to see Religious Freedom not as something apart from but rather an integral part of the general freedoms enjoyed by every Citizen. We will never agree whether we are, or indeed should be, a Secular Society or what that title means however I think we can all agree that we are, or we aspire to be, a free society. A Free Society is a Society in which religion, atheism and secularism exist, each has their part to play and all are regarded as integral parts of Society as a whole.

How do you solve a problem like Sharia ?

On February 7th 2008 the Archbishop of Canterbury gave a radio interview and a speech suggesting that the introduction of elements of Sharia Law into Britain was “inevitable” and he ran into a hail of abuse and ridicule. Later in 2008 the Lord Chief Justice gave a similar speech suggesting that Sharia had a role to play in family disputes and a similar suggestion was made, though to less publicity, by the former Chairman of the Bar Mr Stephen Hockman QC. One year on I thought it would be worth looking at why the issue of Sharia Tribunals and their possible role in Britain is still a source of controversy and hostility.

Part of the problem undoubtedly arises from the fact that "Sharia Law" in its fullness covers both Criminal as well as Civil law and in the public mind therefore to non Muslims the word “Sharia” conjures up images of stoning and executions. Though there are some fanatics who would like to see Criminal Sharia law in Britain they are a small minority of British Muslims. The real issue that the Archbishop was looking at was the possible role of Sharia tribunals as a mechanism of Alternative Dispute Resolution (ADR) especially in relation to the settlement of Matrimonial and Family disputes.

The Archbishop in his speech said
"there are ways of looking at marital disputes, for example, which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate."
Whilst the LCJ said
"There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution."

This was then followed by Press reports that Sharia "Courts" were already operating in Britain in particular in the form of the Muslim Arbitration Tribunal (MAT) . The "revelation" that these "Courts" were having their Arbitration decisions (Fatwas ) enforced by the state Courts, in accordance with the Arbitration Act 1996 has led to campaigns to ban all Religious Tribunals from operating under the Arbitration Act. Supporters of these Sharia Tribunals have in their turn referred to the, long established, Jewish Beth Din Courts and asked why Sharia Tribunals should be any more of a problem than the Beth Din

There are I think a number of reasons why the controversy has aroused such feelings amongst which is the fact that Sharia legal rulings are historically known as Fatwas, unfortunately since the notorious Fatwa issued by the Ayatollah Khomeni calling for the murder of Salman Rushdie this honourable legal term has wholly negative associations in the West. However a more fundamental problem I believe is that Muslims supporting the introduction of Sharia have failed to understand the historic western idea of the separate roles of religion and state and in addition have failed to understand fundamental principles of Jewish law. Britain, in common with the rest of Europe, has been culturally influenced by Christianity and the Christian concept of the separate roles of Church and State. A fundamental part of historic Christian teaching is based on the words of Jesus “Render unto Caesar that which is Caesars, and unto God that which is Gods’ ” (Mathew 22 v 21, Mark 12 v 17, Luke 20 v25) which meant that even when the Church was at the height of its power and influence Christianity accepted that it is the State which makes the law and the Church was duty bound to accept the legitimacy of that secular state law. The secular authorities being equally bound to respect the legitimacy and independence of the Church.

As an example, marriage in historic Christian belief is both a religious sacrament and a civil contract and for that reason a Christian priest or minister will not perform a religious marriage ceremony unless the requirements of the civil law are complied with at the same time. This could mean that a separate civil registrar of marriages is present, or that the priest or minister are themselves entitled to register the marriage. The aim is always to ensure that the marriage is valid in the eyes of the civil law, as well as being religiously valid. For entirely different historical and theological reasons Jewish law also accepts that a marriage must comply with the requirements of the civil law as well as religious law. Judaism has a principle of “Dina d'malchuta dina ” (the law of the land is the law) and therefore a British Rabbi who is performing a Jewish religious marriage ceremony always ensures that the marriage is at the same time registered in accordance with the requirements of the Marriage Act.

On the same principle of respect for the legitimacy of the civil law the Catholic Church will not consider an application for the religious annulment of a marriage until a civil divorce has been obtained and Jewish Beth Din will not consider an application for a religious divorce until the civil divorce proceedings have been resolved.

This aspect of respect for the separate roles of civil and religious law does seem to be missing in many of the Muslim organisations in Britain. At the time of the Archbishops' speech many Muslim spokesmen stated that Muslim Marriage ceremonies were not being recognised by British law which is simply untrue. Any, and every, Mosque in this country has the right to register under the Marriage Act 1949 but only 120 have done so. Unofficial estimates I have been given suggest that only around one third of the Muslim Marriage ceremonies (Nikah) performed in Britain are registered under the Marriage Act, there is no legal reason for this, and the wife has no legal rights to property or inheritance. It also appears to be a practice that is unique to Islam, my information is that Sikh Gurdwaras and Hindu Temples have all registered under the Marriage Act so as to ensure that their marriage ceremonies are legally valid.

If a couple choose not to have a “legal marriage” that is, of course, their right but I do wonder how many couples performing Nikah ceremonies are actually aware that they are not being legally married. I also do wonder why Muslim organisations, such a the Muslim Council of Britain, do not state in clear term that Imams should not perform Nikah ceremonies unless their Mosque is registered under the Marriage Act. Such unregistered wedding ceremonies are in fact illegal under s75(2)(ii) of the Marriage Act and those involved could face up to 5 years imprisonment.

The failure to recognise the existence of British law goes further. In a recent BBC “Inside Out” documentary regarding the Shariah Council at the Birmingham Mosque a lady who had been married in the Sudan was granted an Islamic Divorce and she therefore left assuming she was now free to Marry . However since she had not gone to the British Courts for a Divorce she is in fact still legally married under British law because the law recognises the legal validity of foreign marriages. If that lady goes and remarries in Britain she faces the possibility that she could be charged with Bigamy and she might not have any right to inheritance should her new husband die.

Besides these specific legal problems concerning Muslim marriages I do believe that in their suggestions regarding the possible value of Shariah law in family disputes the Archbishop, the Lord Chief Justice and Shariah Courts are confusing two separate and distinct concepts namely Mediation and Arbitration.

The purpose of Mediation is to see if a legal dispute can be resolved by negotiation between the parties. The crucial point about mediation is that, even though most mediators are trained lawyers, Mediation does not rely upon the application of legal rules or the determination of legal rights or wrongs it aims instead at finding common ground between parties and a solution they can both live with.

Mediation may result in an agreement which can be subsequently presented to a Court and registered as a legal decision but a mediator cannot impose a mediation decision and should not give directions or express opinions on legal issues or likelihoods of success. mediation therefore leads to an agreement rather than a judgement and it is not, as such, regulated by statute. More pertinently a mediation agreement only has legal effect if it is ratified by a court which has to be satisfied that it is indeed an agreement between two parties who understand the legal consequences of what they have agreed to.

Arbitration by contrast is merely another form of trial before a "judge" who is not appointed by the state but is instead agreed to by the parties. Arbitration is especially used in business disputes usually in order to ensure that the "Judge" has specialist knowledge of the area of business in question. A building contract for example will often contain a clause providing for the appointment of an arbitrator who is either a qualified surveyor or architect.

Arbitration is regulated by statute and involves the parties signing an Arbitration agreement before the "trial" begins. The arbitrator can act in accordance with the rules of any legal system specified in the arbitration agreement including, of course, Shariah law and the ultimate "judgement" of the arbitrator can be registered with the civil courts and enforced in the same way as if it was a judgement of the ordinary civil courts. It is this aspect of civil courts enforcing arbitration judgements based on Shariah principles which has led to suggestions in the press that somehow Shariah law has been given "official" recognition.

However it is important to understand that the Arbitration Act does not extend to all areas of law, it does not cover criminal disputes and it does not extend to divorce of child care cases which is where the problems arise with the views of the LCJ "there is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation" . There is, in fact, every reason why the principles of Sharia Law should not be used as the basis for a mediation and that is because mediation does not involve the application of legal rules, whether religious or otherwise, it involves a search for a mutually acceptable compromise. If MAT, or any other organisation, is applying Shariah principles to a dispute then it is engaged in arbitration not mediation, the two are not the same and should not be treated as if they were the same.

The MAT website in part seems to be holding itself out as a mediation organisation
"A trial in a court necessarily involves a winner and a loser,……. This can be at disadvantage where there are reasons to maintain a good relationship after the verdict. An obvious example may include divorce and child custody cases…..Court hearings impose a solution on the parties without their agreement and which may need to be enforced. If the parties are able to negotiate a resolution between them, to which they both agree, this should be less of a predicament"

But a separate section of the website says
"MAT will therefore, for the first time, offer the Muslim community a real and true opportunity to settle disputes in accordance with Islamic Sacred Law"
Judging from its' rules of procedure as set out on its website MAT does not appear to distinguish between offering an arbitration service and offering mediation.

The practical effects of this confusion could be very important in the area of Family and child care cases which is the area where both the Archbishop and the LCJ saw Sharia as having a role to play. In the case of divorce one of the main decisions a Family Court has to decide is the custody and care of any children and such decisions have to be made by the court on the basis of an assessment of what is the "interests of the child". Since children share their parents and, since it is usually in a childs’ interests to keep in contact with both parents, mediation fills an important and valuable role in helping divorcees to reach custody and contact arrangements which they can both accept. In reaching such a mediated agreement there is no doubt that religious leaders could play an important role by appealing to the parents better nature and leading them to look at their responsibilities as parents rather than concentrating on their own negative feelings towards their former partner; however that is not the same as applying Sharia law rules relating to child custody even if those Sharia rules are regarded as "sacred".

Sharia Law rules on child custody can be quite cut and dried and were indeed described by Judges in the House of Lords as "arbitrary and discriminatory" in the case of M (Lebanon) v Home Secretary [2008] UKHL 64. As a general rule in Sharia Law jurisdictions the custody of a child over seven years of age is given to the father so what is a Family Court judge to do if presented with a "mediation agreement" brokered by MAT which gives custody of the children to the father ? If it truly is a mediated agreement between two parents deciding what is the best interests of the child then in normal circumstances the court would register it and enforce it however the question is whether it really is a "mediated" agreement or is does it involve acquiescence by the woman in a Sharia law rule which does not explicitly consider the interests of the child ?.

If it is acquiescence in a Sharia Law rule as opposed to a properly mediated settlement then the Family Court cannot accept the "mediation" agreement because it is not truly a mediation agreement and because enforcement of such a Sharia judgement would be contrary to s6(1) of the Human Rights Act 1998. Under s6(1) "It is unlawful for a public authority [which includes a Court] to act in a way which is incompatible with a Convention right" ie a right under the European Convention on Human Rights and in the case of Refah Partisi v Turkey BAILII: [2003] ECHR 87 the European Court of Human Rights stated
“Sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable….. Sharia, clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts”
Similarly in M (Lebanon) the House of Lords decided that Shariah Law rules on child custody were incompatible with the Human Rights protected by the Convention.

I appreciate that I am not a Muslim however I seriously question whether those calling for Shariah Tribunals in Britain are actually acting in the best interests of British Muslims. If one looks at the 5 pillars of Islam which are the basis of the Islamic faith all of the five pillars are already legal in Britain and none of them require the creation of any form of officially recognised Sharia Court or Tribunal, why then is any such recognition required ? The Archbishop and others opened a profound debate but I think they failed at two levels to make their case, firstly they failed to understand how Alternative Dispute Resolution actually works, but more importantly they failed to ask the question, "Why Shariah ?", what advantage would British Muslims obtain from having a separate legal system which deprives them of their rights as British citizens

Until the Archbishop and other supporters of Sharia Tribunals ask themselves what is the problem that Sharia Tribunals are supposed to address, speeches proposing the extension of Sharia will continue to generate controversy which brings no benefit to British Muslims and unnecessarily exacerbate an already fragile relationship between British Muslims and their Non Muslim neighbours.