A couple of staunchly religious beekeepers who said their beliefs meant they could not meet HMRC’s requirement to file their Value Added Tax (VAT|) returns online have won their case in the Tax Chamber of the First Tier Tribunal case of Blackburn v HM Revenue & Customs [2013] UKFTT 525 (TC)
From the 1st April 2010 HMRC have required all businesses to serve VAT returns via the Internet. However Reg 25A(6) of the VAT Regulations states that
A person who the Commissioners are satisfied is a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications, is not required to make a return required by regulation 25 using an electronic return system.
Graham and Abigail Blackburn, who run Cornish Moorland Honey, in Bodmin, are both devout members of the Seventh Day Adventist Church and view the internet as an intrusion of 'worldliness' into their lives of 'righteousness'. They said that they should be allowed to continue with paper tax submissions, as they had before the new regulations came into force in April.
Graham Blackburn told the FTT that he and wife renounced the use of computers, the internet, televisions and mobile phones in their home. In para 14 of the judgment it was noted that the couple
" have chosen to entirely shun computers and television. They do not possess a computer or television. They do not use them. Mr Blackburn gave unchallenged evidence that he would regard it as incompatible with his beliefs to go to the library to use a computer to make a VAT return or to ask someone (such as an agent) to make his online VAT return on his behalf. They will not use computers nor have someone use them on their behalf."
However HMRC lawyers argued that the couple's stance was 'really a personal preference and not part of their religion.' It noted that the Seventh Day Adventist Church does not ban its members from using the internet , although it does require its members to avoid 'unwholesome' or 'sordid' influences in the mass media. The church does, for example, run its own website.
The Judge found therefore that the religious society of which Mr & Mrs Blackburn were members, the Seventh-day Adventist Church, did not consider its beliefs to be incompatible with the use of electronic communications and so her conclusion was that Regulation 25A(6) in relation to the Blackburns, if seen purely as a question of the normal rules of construction and without reference to the effect of the Human Rights Act 1998 (“HRA”), menat that the Blackburns were not entitled to the religious exemption from liability to file online contained within the Regulation
The Tribunal Judge however rejected this argument and ruled that by refusing to exempt the Blackburns from online filing, HMRC had breached their right to freely manifest their religion, as laid down in Article 9 of the European Convention on Human Rights.
The judge said: ‘I find that, by entirely shunning computers, the Blackburns considered they were acting, as the Bible required them to do, in accordance with their religious conscience. They were manifesting their religious beliefs by refusing to use computers.’
The judge described the justifications put forward by HMRC for refusing to exempt the couple as 'clearly insufficient' and noted that for there to be a breach of Artcle 9 there was no requirement that the particular religious belief had to be a mandatory requirement of the particular religion all that was required was that the person was acting in accordance with a religious belief. Once that was established HMRC had not put forward any argument that would justify overriding the religious beliefs of the Blackburn family and so insisting on them using the Internet to file their VAT returns was a breach of Article 9 and therefore unlawful under sections 3 & 6 of the Human Rights Act 1998
In general terms this is a decision very much on its own facts but to be welcomed as much as anything else because Government Departments should not be able to boss everyone around. Getting VAT returns via the Internet is undoubtedly convenient to HMRC but there is no reason why a person who, for whatever reason, prefers not to use the Internet should be forced to do so
Tuesday, 22 October 2013
Friday, 18 October 2013
Gay and Lesbian Clergy v Bishop of Auckland
There has been an interesting case in New Zealand before their Human Rights Review Tribunal which deals with alleged breaches of the New Zealand Human Rights Act 1993 which is an Anti-Discrimination Statute similar to the British Equality Act 2010. It could have some relevance if a similar case is brought in Britain
In the case of Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland [2013] NZHRRT 36 the Claimant who wanted to study to be a Clergyman in the Anglican Church in New Zealand sought to enter a time of discernment during which his sense of call would be tested and a decision made by a bishop whether training for the ministry should begin. The Bishop of Auckland, refused to allow him to participate in the process of discernment because he was in an unmarried same-sex relationship and could not therefore be ordained into the ministry. The Claimant alleged that this constituted unlawful Discrimination contrary to the Human Rights Act 1993 alleging Discrimination on the basis of his Sexual Orientation.
The New Zealand Act makes it unlawful to Discriminate on the grounds of Sexual Orinentation but provides an exemption in s39 which says
39 Exceptions in relation to qualifying bodies
(1) Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.
this provision is very similar to the exemptions given to religious organisations in Britain by Schedule 9 Part 1(2) of the Equality Act 2010 where exemptions are given
so as to comply with the doctrines of the religion..... so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
In the New Zealand case reference was made to the recently passed New Zealand Marriage (Definition of Marriage) Amendment Act 2013 which like the British Marriage (Same Sex Couples) Act 2013 changed the legal definition of Marriage so as to permit Marriage between Same-Sex couples. The Tribunal however held that this change did not affect the case before them nor did it assist the Claimant in his argument with the Anglican Church
19. The purpose of [ the Marriage (Definition of Marriage) Amendment Act 2013 ] was to amend the Marriage Act 1955 by clarifying that for the purpose of New Zealand secular law, a marriage is between two people regardless of their sex, sexual orientation, or gender identity. The Amendment Act did not amend the doctrine of any church, including in particular that of the Anglican Church, regarding the sacrament of marriage as conceived by that church
In the case the Bishop of Auckland gave evidence about the Christian doctrine on Marriage as understood in the Anglican [and indeed all mainstream Christian] Churches as being between a Man and a Woman and that sexual relationships could only be approved of within such a marriage; therefore the relationship that the Claimant was in was incompatible with the doctrines of the Church. He stated that the, admitted, fact that some Bishops had made ordination decisions inconsistent with the doctrines of the Anglican Church did not change the doctrine of the Church.
There was some "evidence" from activists disputing this view of Anglican Doctrine but the Tribunal refused to be drawn into this noting
[33.3] Only Archbishop Richardson and Bishop Bay can speak for the Anglican Church. They spoke not just as experts, but as spokespersons for the Church and their evidence must be accepted. The separation of church and state must be maintained. The Tribunal cannot determine what is at heart an ecclesiastical dispute.
Para 42 of the Judgment is also worth quoting in its entirety as a very fine analysis of the nature of Religious Liberty
[42] The right of religious communities to determine and administer their own internal religious affairs without interference from the state is referred to as religious group autonomy (or “church autonomy”, to use the traditional label). See Ahdar and Leigh op cit 374 where it is noted that the importance of religious group autonomy to any overall scheme of religious liberty has been described as “most important”, “critical”, and “exceptionally high”:
Religious group autonomy is the freedom asserted by religious communities as groups. This freedom is not merely a “compound” or “aggregation” of individual members’ freedoms; it is the right the group asserts to its own religious exercise, separate and distinct from the rights and interests of its members. If religious groups are merely a combination of individual interests, a means to enhance personal autonomy, then this implies that these groups “are presumptively entitled to constitutional protection only to the extent that they do, in fact, enhance individual liberty”. This in turn implies greater vulnerability to state intervention into the internal affairs of such groups since the focus would be on vindicating individuals and their interests, not the group and its interests. In our view, this characteristically liberal and atomistic way of viewing religious groups (an aggregation of individuals contingently linked by religious preferences) seriously undermines religious freedom.
Religion is seldom if ever solely an individual matter. While a lone individual may clearly follow his or her own unique chosen path in matters of belief, worship, and practice, the vast majority of human beings only find it meaningful to pursue their religious objectives together with other like-minded individuals. There is an ineradicable collective or communal dimension to religion. Organizations or associations are formed to give effect to this communal aspiration. An individual’s religious life is very much tied to and dependent upon the health of the religious community to which that believer belongs. It requires a religious “infrastructure”.
The Judgment is of a high standard and considers European, American and British Judgments relating to the nature of religious freedom. As with all cases it ultimately relies on its own facts and its own National Legislation but it will undoubtedly be a valuable persuasive precedent in any future cases brought in Britain which challenge employment or similar decisions made by Churches in particular decisions by Churches refusing to offer or participate in Same-Sex Marriage ceremonies.
In the case of Gay and Lesbian Clergy Anti-Discrimination Society Inc v Bishop of Auckland [2013] NZHRRT 36 the Claimant who wanted to study to be a Clergyman in the Anglican Church in New Zealand sought to enter a time of discernment during which his sense of call would be tested and a decision made by a bishop whether training for the ministry should begin. The Bishop of Auckland, refused to allow him to participate in the process of discernment because he was in an unmarried same-sex relationship and could not therefore be ordained into the ministry. The Claimant alleged that this constituted unlawful Discrimination contrary to the Human Rights Act 1993 alleging Discrimination on the basis of his Sexual Orientation.
The New Zealand Act makes it unlawful to Discriminate on the grounds of Sexual Orinentation but provides an exemption in s39 which says
39 Exceptions in relation to qualifying bodies
(1) Nothing in section 38 shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.
this provision is very similar to the exemptions given to religious organisations in Britain by Schedule 9 Part 1(2) of the Equality Act 2010 where exemptions are given
so as to comply with the doctrines of the religion..... so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.
In the New Zealand case reference was made to the recently passed New Zealand Marriage (Definition of Marriage) Amendment Act 2013 which like the British Marriage (Same Sex Couples) Act 2013 changed the legal definition of Marriage so as to permit Marriage between Same-Sex couples. The Tribunal however held that this change did not affect the case before them nor did it assist the Claimant in his argument with the Anglican Church
19. The purpose of [ the Marriage (Definition of Marriage) Amendment Act 2013 ] was to amend the Marriage Act 1955 by clarifying that for the purpose of New Zealand secular law, a marriage is between two people regardless of their sex, sexual orientation, or gender identity. The Amendment Act did not amend the doctrine of any church, including in particular that of the Anglican Church, regarding the sacrament of marriage as conceived by that church
In the case the Bishop of Auckland gave evidence about the Christian doctrine on Marriage as understood in the Anglican [and indeed all mainstream Christian] Churches as being between a Man and a Woman and that sexual relationships could only be approved of within such a marriage; therefore the relationship that the Claimant was in was incompatible with the doctrines of the Church. He stated that the, admitted, fact that some Bishops had made ordination decisions inconsistent with the doctrines of the Anglican Church did not change the doctrine of the Church.
There was some "evidence" from activists disputing this view of Anglican Doctrine but the Tribunal refused to be drawn into this noting
[33.3] Only Archbishop Richardson and Bishop Bay can speak for the Anglican Church. They spoke not just as experts, but as spokespersons for the Church and their evidence must be accepted. The separation of church and state must be maintained. The Tribunal cannot determine what is at heart an ecclesiastical dispute.
Para 42 of the Judgment is also worth quoting in its entirety as a very fine analysis of the nature of Religious Liberty
[42] The right of religious communities to determine and administer their own internal religious affairs without interference from the state is referred to as religious group autonomy (or “church autonomy”, to use the traditional label). See Ahdar and Leigh op cit 374 where it is noted that the importance of religious group autonomy to any overall scheme of religious liberty has been described as “most important”, “critical”, and “exceptionally high”:
Religious group autonomy is the freedom asserted by religious communities as groups. This freedom is not merely a “compound” or “aggregation” of individual members’ freedoms; it is the right the group asserts to its own religious exercise, separate and distinct from the rights and interests of its members. If religious groups are merely a combination of individual interests, a means to enhance personal autonomy, then this implies that these groups “are presumptively entitled to constitutional protection only to the extent that they do, in fact, enhance individual liberty”. This in turn implies greater vulnerability to state intervention into the internal affairs of such groups since the focus would be on vindicating individuals and their interests, not the group and its interests. In our view, this characteristically liberal and atomistic way of viewing religious groups (an aggregation of individuals contingently linked by religious preferences) seriously undermines religious freedom.
Religion is seldom if ever solely an individual matter. While a lone individual may clearly follow his or her own unique chosen path in matters of belief, worship, and practice, the vast majority of human beings only find it meaningful to pursue their religious objectives together with other like-minded individuals. There is an ineradicable collective or communal dimension to religion. Organizations or associations are formed to give effect to this communal aspiration. An individual’s religious life is very much tied to and dependent upon the health of the religious community to which that believer belongs. It requires a religious “infrastructure”.
The Judgment is of a high standard and considers European, American and British Judgments relating to the nature of religious freedom. As with all cases it ultimately relies on its own facts and its own National Legislation but it will undoubtedly be a valuable persuasive precedent in any future cases brought in Britain which challenge employment or similar decisions made by Churches in particular decisions by Churches refusing to offer or participate in Same-Sex Marriage ceremonies.
Tuesday, 1 October 2013
An Imam as an Employee
In my Blog on 17 May 2013 I discussed the case of President of the Methodist Conference v Preston [2013] UKSC 29 where the Supreme Court decided that, on the facts, a Methodist Minister was not an employee but was an office holder. I had noted at the time
"On the basis of the [Preston] decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees."
This view was based in part on comments in the case by Lady Hale who had noted at para 36
"It is normal for rabbis to be employed by a particular synagogue, for example."
I had actually not noticed the earlier 2012 case of Ur- Rehman v Doncaster Jahia Mosque [2012] UKEAT 0117_12_1008 where it had been accepted by both the Employment Tribunal and EAT that the Imam in question was an employee.
In a very interesting article Nabilla Mallick looks at the question "Are Imams Employees Of Mosques" and reaches the clear view that they are. The article looks at a an Employment Tribunal case Hasan v Redcoat Community Centre ( East London Employment Tribunal) which was decided that the Imam was an employee. He could bring a claim for unfair dismissal though he lost on the facts.
In view of recent tragic events in Kenya it is perhaps worth noting that the reason the Imam was sacked by the Committee was apparently the political nature of his Khutbahs (Friday Sermons).
The Article reads (c) Nabila Mallick
"An Imam performs the duty of offering prayer for the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. "
"On the basis of the [Preston] decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees."
This view was based in part on comments in the case by Lady Hale who had noted at para 36
"It is normal for rabbis to be employed by a particular synagogue, for example."
I had actually not noticed the earlier 2012 case of Ur- Rehman v Doncaster Jahia Mosque [2012] UKEAT 0117_12_1008 where it had been accepted by both the Employment Tribunal and EAT that the Imam in question was an employee.
In a very interesting article Nabilla Mallick looks at the question "Are Imams Employees Of Mosques" and reaches the clear view that they are. The article looks at a an Employment Tribunal case Hasan v Redcoat Community Centre ( East London Employment Tribunal) which was decided that the Imam was an employee. He could bring a claim for unfair dismissal though he lost on the facts.
In view of recent tragic events in Kenya it is perhaps worth noting that the reason the Imam was sacked by the Committee was apparently the political nature of his Khutbahs (Friday Sermons).
Hasan v Redcoat Community Centre , the East London Employment Tribunal
- See more at:
http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.e2XVWQs2.dpuf
The Article reads (c) Nabila Mallick
"An Imam performs the duty of offering prayer for the congregation in mosques. Essentially mosques are a centre of community worship where Muslims perform ritual prayer and where historically they also gathered for political, social and cultural functions. The function of the mosque is summarised by the 13th Century jurist Ibn Taymiyah as a place of gathering where prayer was celebrated and where public affairs were conducted. Services connected to marriages or birth are not usually performed inside the mosque. The rites that are important and integral to the function of many churches such as confession, penitence and confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
[1] All India Imam Organisations and others v Union of India and others no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4] Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale provided authoritative account of the running of Protestant churches and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9] Mosque committees consider themselves guided by the Spiritual nature of the Imam’s duties and the edicts of the Quran. However, this is not inconsistent with UK Employment Law ( Quran – ‘give just measure and weight, do not withhold from the people the things that are their due’ [11:85] – fulfill your covenants [5:1]- fulfill your engagements for every engagement will be enquired into [17:34]). Therefore terms of engagement must reflect the true position of the Imam and be detailed. "
An
Imam performs the duty of offering prayer for the congregation in
mosques. Essentially mosques are a centre of community worship where
Muslims perform ritual prayer and where historically they also gathered
for political, social and cultural functions. The function of the mosque
is summarised by the 13th Century jurist Ibn Taymiyah as a
place of gathering where prayer was celebrated and where public affairs
were conducted. Services connected to marriages or birth are not usually
performed inside the mosque. The rites that are important and integral
to the function of many churches such as confession, penitence and
confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
- See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.zDwCA2Mg.dpuf
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
[1]
All India Imam Organisations and others v Union of India and others
no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4]
Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale
provided authoritative account of the running of Protestant churches
and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9]
Mosque committees consider themselves guided by the Spiritual nature of
the Imam’s duties and the edicts of the Quran. However, this is not
inconsistent with UK Employment Law ( Quran – ‘give just measure and
weight, do not withhold from the people the things that are their due’
[11:85] – fulfill your covenants [5:1]- fulfill your engagements for
every engagement will be enquired into [17:34]). Therefore terms of
engagement must reflect the true position of the Imam and be detailed.
An
Imam performs the duty of offering prayer for the congregation in
mosques. Essentially mosques are a centre of community worship where
Muslims perform ritual prayer and where historically they also gathered
for political, social and cultural functions. The function of the mosque
is summarised by the 13th Century jurist Ibn Taymiyah as a
place of gathering where prayer was celebrated and where public affairs
were conducted. Services connected to marriages or birth are not usually
performed inside the mosque. The rites that are important and integral
to the function of many churches such as confession, penitence and
confirmation do not exist in mosques.[1]
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
- See more at: http://www.no5.com/news-and-publications/publications/237-are-imams-employees-of-mosques-/#sthash.zDwCA2Mg.dpuf
Imams are expected to look after the cleanliness of mosque and propagate Islamic faith. They are expected to be well versed in the shariat[2], the holy Quran, the hadiths[3], ethics, philosophy, social, economic and religious aspects. The Imam like the Parish priest is expected to make himself available to his congregation whenever he is needed. However, unlike Churches who have designated clergy , mosques may have either one Imam or a number of Imams in its service. There is no hierarchy, but each Mosque Committee determines how a Mosque is to be run.
Since there is no hierarchical religious authority, it is virtually impossible for any religious body to govern the diversity [4]. Many mosque committees would argue against statutory governance of the arrangements with its Imams on the basis that they require flexibility to run the mosques to meet the needs of the differing local communities. On the other hand many Imams would point to frequent and serious denial of justice and equity when they are left with no entitlement on dismissal.[5]
The Islamic response to the dti, has been, very much in favour of the extension of employment status to Imams. The principal reason for such intervention is that it is a way of bringing order and support to Imams, who rely on salaries funded by local communities, often receiving less than the minimum wage and working ill defined hours, duties and working conditions. There can be no protection against dismissal, which can be ad hoc and capricious frequently driven by grassroots politics.[6] The question is how is balance to be maintained between the balancing the needs of the local Muslim community to that of its Imams.
Recently the in Hasan v Redcoat Community Centre , the East London Employment Tribunal had to address this issue and decided that the Imam was an employee.[7] In coming to its decision it had particular regard to the case of Preston –v- President of the Methodist Church [ 2012] UKSC 29. In that case, the Supreme Court, drew distinction between office holders defined by rules of the institution and employee defined by the contract. It further considered the spiritual nature of a minister of religion’s calling.
In giving Judgement Lord Sumption referred to the decision of Percy v Board of National Mission of Church of Scotland [2006] 2AC 28, Lord Nicholls considered an office holder an unsatisfactory criterion for determining whether the minister was an employee and concluded the two were not always mutually exclusive. Turning to the spiritual nature, Lord Nicholls recognised its relevance and cited President of the Methodist Conference v Parfitt [1984] QB 368 as a life time commitment by a minister, who could not unilaterally resign. In that case, it was concluded that the Minister was an office holder and not an employee. He held that there was no cogent reason why there should be a distinction between posts that are religious and those that are not.
In Preston, the court refused to reintroduce the concept of non contractual status and the court concluded there can be no presumption. The question of status is determined by whether there were arrangements of an employment nature at all. In finding there was no such contract, it was said that it could not ignore the fact that, because of the way the church organises its own affairs, the basis for the rights and duties is to be found in the constitutional provisions of the church. However Lady Hale dissented- it was a very specific arrangement for a particular post, at a particular time, with a particular manse and particular stipend with a particular set of responsibilities. The spiritual nature of some of the duties did not necessarily entail a different conclusion.
The Employment Tribunal, relying on Preston at § 10 of Lord Sumption’s Judgement, posed itself the question, what was the manner in which the minister (Imam) was engaged and the rule or terms governing service? This was to be considered against the fundamental spiritual purpose of the functions of ministers of religion.[8]
The Employment Tribunal was further informed by the case of Autoclenz –v- Belcher [2011] IRLR 820 and the approval by Lord Clarke of the decision of Mackenna J ‘s decision in Ready-Mix (concrete) –v- Minster of Pensions [1968] 2QB 497, - the condition of contract of service are fulfilled :
1.the servant agrees in consideration of wage or other remuneration he will provide his own skill in the performance of service
2. he agrees expressly or impliedly that in the performance of his duties he will be subject to control.
3.Other terms of contract are not inconsistent with it being a contract of service, although the freedom to do the job either by ones hand or another are, limited power of delegation may not be.
Therefore the Employment Tribunal considered that RCC is a charity that functioned through an executive committee. There was a written constitution that provided inter alia for the purpose of RCC to promote education, training, housing, arts, health and any other aspects of the lives of the local community, provide and assist leisure facilities for the Young and to promote understanding of religion in the local community. In furtherance of its objectives the Respondent was empowered to ‘employ’ anyone to meet its objectives.
The Claimant had responded to an advert and was engaged in the position of Imam with RCC until his contract was terminated because of the political nature of his Khutbahs (Friday Sermons). He was given a written document that described hours of work as full time (self employed), no statutory sick pay or holiday pay with the duty of leading the congregation in prayer, imparting Islamic education and dealing with religious queries from the local community.
There was dispute between the parties as to why the terms of engagement made reference to self employment. Although it suited the Imam to be responsible for his own income tax and National Insurance, this went to legality of the contract rather than the issue of whether he was an employee. It was noted that the Imam started his duties each day before sun rise and completed his duties an hour after sunset. He was responsible for opening and closing the mosque. On Fridays and Sundays he had extra duties of teaching the Quran. He also answered religious queries from the local community. He was only excused from such duties for the Haj period, when he substituted the Muezzin to undertake his duties, as he did some mornings when he could not attend for the morning prayer. There was a degree of autonomy in that he crafted his own sermons and did not have to work to any RCC guidelines. However, there was also a degree of control of his attendance at the Mosque, the fact he was expected to attend thirty minutes before each prayer and stay behind thirty minutes thereafter. Further RCC also attempted to control the subject matter of his sermons and there was evidence that the Imam had to excuse non -attendance. Having regard to the documentary evidence fixing terms of engagement, the control exercised by the RCC, minimal rights of substitution and a fixed weekly salary, irrespective of absence, it was held that the true position was that the Imam was employed by the RCC committee. However, the Imam’s claim did not succeed because it was tainted by illegality.
Conclusion
Whilst research indicates that the issue of Employment rights of Imams have arisen in a number of jurisdictions, including the Arab countries, it is the writers opinion that legislative intervention is unnecessary, as the present common law position allows parties the freedom to define their relationship as they choose to meet the needs of the local community. Having said that, it is incumbent on Mosque Committees to ensure that any agreement genuinely reflects the status of the Imam.[9] Mosque Committees must also remember that employing Imams allows them to control activities within the Mosques, such as the content of the khutbah (sermon), which may be desirable in the current political climate.
The writer practices in the field of Employment Law and studied Islamic Jurisprudence at undergraduate level, she can be contacted to provide advice to Mosque Committees on the drafting of agreements, employee handbook to encompass Islamic doctrine and all matters concerning employment, in particular, disciplinary and grievance procedures.
Please click here to view Nabila Mallick's profile.
[1]
All India Imam Organisations and others v Union of India and others
no.715 of 1990 DT-13-5-1993 – Decision of India supreme Court
[2] Shariat is the body of doctrine that regulate the lives of those who profess Islam.
[3] Hadith are sayings of the Prophet.
[4]
Preston -v- President of Methodist Church [2012] UKSC 29, Baroness Hale
provided authoritative account of the running of Protestant churches
and the engagement of those in its service.
[5] Birmingham Mosque Trust Ltd v Alavi [1992] ICR 435
[6] Employment status in relation to statutory rights - December 2002
[7] Ur Rahman v Doncaster Jahia Mosque [2012] UKEAT 0117/12
[8] Whilst Lady Hale differed in her conclusion, her reasoning was not inconsistent to Lord Sumptions.
[9]
Mosque committees consider themselves guided by the Spiritual nature of
the Imam’s duties and the edicts of the Quran. However, this is not
inconsistent with UK Employment Law ( Quran – ‘give just measure and
weight, do not withhold from the people the things that are their due’
[11:85] – fulfill your covenants [5:1]- fulfill your engagements for
every engagement will be enquired into [17:34]). Therefore terms of
engagement must reflect the true position of the Imam and be detailed.
DREW v WALSALL HEALTHCARE NHS TRUST - Prayers in Work
The case of Drew v Walsall Healthcare NHS Trust [2013] UKEAT 0378_12_2009 raises again the vexed question of how far an individual can bring their personal religious beliefs into the workplace.
Dr Drew was employed by the NHS as a Paediatric consultant. He worked in what was described as a "multicultural and multi-faith department". Problems within the department arose because Dr Drew apparently habitually used Christian references in his professional communications with others. News reports on the case have made reference to the fact that on one occasion he distributed an email containing a prayer by St Ignatius Loyola which he personally had found motivational in the past
An internal investigation made a recommendation, among others, that he should keep his personal views and religious beliefs to himself and should not impose them on others. The Appellant did not accept the recommendation and took out a grievance which led to an independent review of the situation. This led to a report which amongst other things recommended that Dr Drew should refrain from any religious references in his professional communications.
All the relevant staff accepted the panel's recommendations, except Dr Drew and his refusal ultimately led to disciplinary proceedings and eventual dismissal. Dr Drew claimed that he had been discriminated against on religious grounds, had been victimized and had been unfairly dismissed. The Employment Tribunal rejected his claims as did the EAT
On appeal multiple grounds were argued but all failed. The EAT stated that the ET had correctly directed themselves to follow the guidance given by the EAT in Islington v. Ladele [2008] UKEAT 0453_08_1912 They had identified correctly a hypothetical comparator (having rejected the Appellant's actual comparator, a conclusion which was not attacked on appeal) as someone whose relevant circumstances were the same as those of the Appellant save for his protected characteristic, described by the Appellant as that of being an "orthodox Christian", and who acted as the Appellant had done but used terms relating to his own religious belief system or non-religious or atheist belief system and were entitled to conclude that such a comparator would have been treated in the same way.
Much of the judgment dealt with the vexed question of the appropriate "comparator" and the EAT noted the particular difficulty of finding the appropriate comparator in Religious Discrimination cases
57 We have some sympathy for anyone who has to identify an appropriate hypothetical comparator in the context of this particular form of discrimination and are not critical of Mr McIlroy's attempts to nail down a convincing rationale for his criticism of the Tribunal's conclusions on this issue. The exercise of identifying an appropriate hypothetical comparator is not straightforward, as the EAT said in Ladele at paragraph 35; the Tribunal could have avoided the exercise by going directly to determination of the reason why Dr Drew was treated as he was – see Ladele, paragraphs 37 and 38 – but they were clearly entitled to seek to identify the appropriate comparator and indeed received extensive submissions on the topic. Neither Mr McIlroy nor Ms Misra criticised the Tribunal for seeking to resolve the arguments between the parties as to the correct hypothetical comparator or for deciding that "reason why" issue by reference to a hypothetical comparator, as they did.
58 In our judgment, it being clear that Dr Drew's case was that he was discriminated against because of his orthodox Christian beliefs the Tribunal did not err in law in determining that the hypothetical comparator, who was in the same or not materially different circumstances, was a person in Dr Drew's position – i.e. a consultant paediatrician – who in the course of his work made references to which others objected based on his own religious or non-religious belief system. The second sentence of paragraph 100(2) of the Tribunal's judgment, in rather fuller terms, is, in our judgment, correct or at least sets out a solution which was open to the Tribunal. There would have been no basis for restricting the comparator in the context of this case, in which Dr Drew claimed discrimination on the grounds of his orthodox Christian beliefs, for excluding a comparison of a consultant paediatrician of a different religion. Dr Drew's case was not that Dr Rashid or the Trust were discriminating against all religions as opposed to a non-religious belief system; the Tribunal were not in error in failing to restrict the comparator to one who was an atheist.
Though the case does demonstrate again the difficulties in establishing Religious Discrimination claims the case is extremely fact specific and probably provides little assistance in other similar situations. The point that seems to come over generally in the judgment is that personal relationships had broken down between Dr Drew and his work colleagues for reasons which had more to do with personality clashes than with Religion
Dr Drew was employed by the NHS as a Paediatric consultant. He worked in what was described as a "multicultural and multi-faith department". Problems within the department arose because Dr Drew apparently habitually used Christian references in his professional communications with others. News reports on the case have made reference to the fact that on one occasion he distributed an email containing a prayer by St Ignatius Loyola which he personally had found motivational in the past
An internal investigation made a recommendation, among others, that he should keep his personal views and religious beliefs to himself and should not impose them on others. The Appellant did not accept the recommendation and took out a grievance which led to an independent review of the situation. This led to a report which amongst other things recommended that Dr Drew should refrain from any religious references in his professional communications.
All the relevant staff accepted the panel's recommendations, except Dr Drew and his refusal ultimately led to disciplinary proceedings and eventual dismissal. Dr Drew claimed that he had been discriminated against on religious grounds, had been victimized and had been unfairly dismissed. The Employment Tribunal rejected his claims as did the EAT
On appeal multiple grounds were argued but all failed. The EAT stated that the ET had correctly directed themselves to follow the guidance given by the EAT in Islington v. Ladele [2008] UKEAT 0453_08_1912 They had identified correctly a hypothetical comparator (having rejected the Appellant's actual comparator, a conclusion which was not attacked on appeal) as someone whose relevant circumstances were the same as those of the Appellant save for his protected characteristic, described by the Appellant as that of being an "orthodox Christian", and who acted as the Appellant had done but used terms relating to his own religious belief system or non-religious or atheist belief system and were entitled to conclude that such a comparator would have been treated in the same way.
Much of the judgment dealt with the vexed question of the appropriate "comparator" and the EAT noted the particular difficulty of finding the appropriate comparator in Religious Discrimination cases
57 We have some sympathy for anyone who has to identify an appropriate hypothetical comparator in the context of this particular form of discrimination and are not critical of Mr McIlroy's attempts to nail down a convincing rationale for his criticism of the Tribunal's conclusions on this issue. The exercise of identifying an appropriate hypothetical comparator is not straightforward, as the EAT said in Ladele at paragraph 35; the Tribunal could have avoided the exercise by going directly to determination of the reason why Dr Drew was treated as he was – see Ladele, paragraphs 37 and 38 – but they were clearly entitled to seek to identify the appropriate comparator and indeed received extensive submissions on the topic. Neither Mr McIlroy nor Ms Misra criticised the Tribunal for seeking to resolve the arguments between the parties as to the correct hypothetical comparator or for deciding that "reason why" issue by reference to a hypothetical comparator, as they did.
58 In our judgment, it being clear that Dr Drew's case was that he was discriminated against because of his orthodox Christian beliefs the Tribunal did not err in law in determining that the hypothetical comparator, who was in the same or not materially different circumstances, was a person in Dr Drew's position – i.e. a consultant paediatrician – who in the course of his work made references to which others objected based on his own religious or non-religious belief system. The second sentence of paragraph 100(2) of the Tribunal's judgment, in rather fuller terms, is, in our judgment, correct or at least sets out a solution which was open to the Tribunal. There would have been no basis for restricting the comparator in the context of this case, in which Dr Drew claimed discrimination on the grounds of his orthodox Christian beliefs, for excluding a comparison of a consultant paediatrician of a different religion. Dr Drew's case was not that Dr Rashid or the Trust were discriminating against all religions as opposed to a non-religious belief system; the Tribunal were not in error in failing to restrict the comparator to one who was an atheist.
Though the case does demonstrate again the difficulties in establishing Religious Discrimination claims the case is extremely fact specific and probably provides little assistance in other similar situations. The point that seems to come over generally in the judgment is that personal relationships had broken down between Dr Drew and his work colleagues for reasons which had more to do with personality clashes than with Religion
Sunday, 8 September 2013
Is Sex Selective Abortion Illegal ?
The Crown Prosecution Service has issued a Statement on Abortion Related Case which has aroused considerable controversy. In simple terms it concerns a expose investigation by the Daily Telegraph Newspaper which demonstrated that some Doctors would perform Abortions where the only reason was because of the sex of the Unborn Child. The usual assumption is that the unborn child is female and that is the reason for the Abortion, sadly such Gendercide is now common in some parts of the world where it is causing dangerously unbalanced Male-Female ratios.
The facts were reported to the CPS which in its unconvincing statement says that
"The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender."
but then adds that it is "not in the public interest" to bring prosecutions in this case. That decision has not unreasonably aroused controversy since it seems to be saying that Doctors can get away with breaking the law.
I however have a different perspective since right from the start of this controversy I have taken the view that Sex Selective Abortion is not illegal. In my opinion as a former Crown Prosecutor the CPS knew that if it brought a Prosecution it would probably lose the case.
I want to make it clear that in saying this I am not speaking as a supporter of Sex Selective Abortion or indeed any other form of Abortion because all forms of Abortion are morally repugnant and involve the cold blooding killing of an innocent unborn child. However I cannot see why sex selective Abortion should be considered more morally repugnant than any other form of Abortion and speaking purely as a lawyer and in the terms under which our law permits Abortion I cannot see on what basis Sex Selective Abortion is illegal.
The Abortion Act 1967 s1 sets out the terms under which Abortion is legal in Britain
1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
The main clause under which the majority of Abortions are carried out is s1(1)(a) and is used for a wide variety of Abortions for "social" reasons. It is, sadly, commonplace for Abortions to be carried out simply because the sexual relationship has finished, or was no more than a "one night stand", or because the woman has simply changed her mind and does not want a child, or because it may cause "inconvenience" to an existing relationship or even cause difficulties at work. I am reliably informed that where female students find themselves pregnant they are routinely pushed by their University in the direction of either having an Abortion or abandoning their University course.
All of these "reasons" for an Abortion are accommodated under the provisions of s1(1)(a) so why should a woman not be similarly accommodated if her reason for wanting an Abortion is the sex of the Child ? After all ethical guidance from the British Medical Association states that a Doctor (my emphasis)
"must not imply or express disapproval of the patient’s lifestyle, choices or beliefs"
why therefore should a womans choice regarding the desired sex of her baby be disapproved of if any other reason for choosing an Abortion cannot be disapproved of ?
The newspaper discussions on sex selective Abortion have assumed that it is accepted by Medical experts that such an Abortion is clearly illegal but that is not the view of the British Medical Association which in a booklet The law and ethics of abortion says (my emphasis)
1.7 Abortion on grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act of 1967 and therefore termination on this ground alone has been challenged as outwith the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman's health or that of her existing children would be put at greater risk than if she terminated the pregnancy, the abortion would be arguably lawful under section 1(1)(a) of the Abortion Act. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders. The pregnant woman's views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide ethical justification for a termination. They should be prepared to justify the decision if it were challenged.
The issue therefore is accepted as not clear from doubt. Section 1(2) of the Abortion Act may also be particularly relevant as a defence for any Doctor who was charged with conducting a sex selective Abortion (my emphasis)
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
Therefore if the woman is in an "environment" where the sex of the baby was relevant for example where there are cultural pressures to have a boy or where there is already one child of a particular sex and the couple either want their next child to be a different sex to their sibling or want it to be of the same sex then an Abortion would be legally justified.
I repeat again I am not defending the practice of Sex Selective Abortion nor am I defending these particular Doctors other than to say that they are morally no worse than most other Doctors performing or authorising Abortions.
My point is not to defend them but rather to explain why they were not prosecuted. The fact is that any prosecution of these Doctors would have been very problematic and they would probably have been acquited. The CPS, not unreasonably, took a look at the legal, ethical and political complexities involved and decided to make the feeble excuse that prosecution was not in the public interest. The CPS should have been franker and admitted that their real reason for not prosecuting was that there was "No realistic prospect of Conviction". According to the "Code for Crown Prosecutors" that is a perfectly valid reason for not prosecuting but stating the fact publicly would have made it obvious to everyone that the Abortion Act 1967 is a moral and legal mess.
I also have permission from Dr Ellie Lee from the University of Kent to add a link to her interesting article"Sex selection: what Britain’s Abortion Law Really Says" at the Spiked-Online website
The facts were reported to the CPS which in its unconvincing statement says that
"The Abortion Act 1967 allows for an abortion in a limited range of circumstances but not purely on the basis of not wanting a child of a specific gender."
but then adds that it is "not in the public interest" to bring prosecutions in this case. That decision has not unreasonably aroused controversy since it seems to be saying that Doctors can get away with breaking the law.
I however have a different perspective since right from the start of this controversy I have taken the view that Sex Selective Abortion is not illegal. In my opinion as a former Crown Prosecutor the CPS knew that if it brought a Prosecution it would probably lose the case.
I want to make it clear that in saying this I am not speaking as a supporter of Sex Selective Abortion or indeed any other form of Abortion because all forms of Abortion are morally repugnant and involve the cold blooding killing of an innocent unborn child. However I cannot see why sex selective Abortion should be considered more morally repugnant than any other form of Abortion and speaking purely as a lawyer and in the terms under which our law permits Abortion I cannot see on what basis Sex Selective Abortion is illegal.
The Abortion Act 1967 s1 sets out the terms under which Abortion is legal in Britain
1(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
The main clause under which the majority of Abortions are carried out is s1(1)(a) and is used for a wide variety of Abortions for "social" reasons. It is, sadly, commonplace for Abortions to be carried out simply because the sexual relationship has finished, or was no more than a "one night stand", or because the woman has simply changed her mind and does not want a child, or because it may cause "inconvenience" to an existing relationship or even cause difficulties at work. I am reliably informed that where female students find themselves pregnant they are routinely pushed by their University in the direction of either having an Abortion or abandoning their University course.
All of these "reasons" for an Abortion are accommodated under the provisions of s1(1)(a) so why should a woman not be similarly accommodated if her reason for wanting an Abortion is the sex of the Child ? After all ethical guidance from the British Medical Association states that a Doctor (my emphasis)
"must not imply or express disapproval of the patient’s lifestyle, choices or beliefs"
why therefore should a womans choice regarding the desired sex of her baby be disapproved of if any other reason for choosing an Abortion cannot be disapproved of ?
The newspaper discussions on sex selective Abortion have assumed that it is accepted by Medical experts that such an Abortion is clearly illegal but that is not the view of the British Medical Association which in a booklet The law and ethics of abortion says (my emphasis)
1.7 Abortion on grounds of fetal sex
Fetal sex is not one of the criteria for abortion listed in the Abortion Act of 1967 and therefore termination on this ground alone has been challenged as outwith the law. There may be circumstances, however, in which termination of pregnancy on grounds of fetal sex would be lawful. It has been suggested that if two doctors, acting in good faith, formed the opinion that the pregnant woman's health or that of her existing children would be put at greater risk than if she terminated the pregnancy, the abortion would be arguably lawful under section 1(1)(a) of the Abortion Act. The Association believes that it is normally unethical to terminate a pregnancy on the grounds of fetal sex alone except in cases of severe x-linked disorders. The pregnant woman's views about the effect of the sex of the fetus on her situation and on her existing children should nevertheless be carefully considered. In some circumstances doctors may come to the conclusion that the effects are so severe as to provide ethical justification for a termination. They should be prepared to justify the decision if it were challenged.
The issue therefore is accepted as not clear from doubt. Section 1(2) of the Abortion Act may also be particularly relevant as a defence for any Doctor who was charged with conducting a sex selective Abortion (my emphasis)
(2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) or (b) of subsection (1) of this section, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.
Therefore if the woman is in an "environment" where the sex of the baby was relevant for example where there are cultural pressures to have a boy or where there is already one child of a particular sex and the couple either want their next child to be a different sex to their sibling or want it to be of the same sex then an Abortion would be legally justified.
I repeat again I am not defending the practice of Sex Selective Abortion nor am I defending these particular Doctors other than to say that they are morally no worse than most other Doctors performing or authorising Abortions.
My point is not to defend them but rather to explain why they were not prosecuted. The fact is that any prosecution of these Doctors would have been very problematic and they would probably have been acquited. The CPS, not unreasonably, took a look at the legal, ethical and political complexities involved and decided to make the feeble excuse that prosecution was not in the public interest. The CPS should have been franker and admitted that their real reason for not prosecuting was that there was "No realistic prospect of Conviction". According to the "Code for Crown Prosecutors" that is a perfectly valid reason for not prosecuting but stating the fact publicly would have made it obvious to everyone that the Abortion Act 1967 is a moral and legal mess.
UPDATE 10 SEPTEMBER 2013
My attention was drawn to an excellent legal commentary on the CPS decision by legal blogger, Greg Callus, who argues that the CPS' decision not to prosecute is defensible on the facts. He is approaching it from a slightly different angle to me but I do not disagree with what he has said. Unfortunately I do not know Gregs contact details and so I have not been able to ask whether he has any objections to me linking to him. If you want to get in contact Greg I would be delighted to hear from youI also have permission from Dr Ellie Lee from the University of Kent to add a link to her interesting article"Sex selection: what Britain’s Abortion Law Really Says" at the Spiked-Online website
Saturday, 24 August 2013
New Mexico Supreme Court - Breaching Religious Beliefs "The Price of Citizenship"
A decision by the Supreme Court of New Mexico Elane Photography v Vanessa WillockAugust 22, 2013 has aroused controversy not because of its decision which was predictable but because of the reasoning put forward by one of the Judges Justice Bosson
The case involved a small photography business run by Elaine and John Huguenin who refused to photograph a "Commitment Ceremony" held by a Lesbian couple. Same Sex marriage is not legal in New Mexico but it was accepted in the Court that the proposed "Commitment Ceremony" was a Marriage Ceremony in all but name. The Huguenins were then sued for breaching the New Mexico Human Rights Act (NMHRA) which is a Non Discrimination Act. The New Mexico Supreme Court held that the acts of the Huguenins constituted unlawful discrimination in breach of NMHRA and their sincere religious objections to photographing the "Commitment Ceremony" were not protected by the First Amendment to the US Constitution
Leaving aside the fact that is Orwellian to describe as a "Human Rights Act" legislation which prohibits what private individuals, such as the Huguenins may or may not do the decision was predictable. Refusals to provide services based on religious principles have been uniformly unsuccessful in the Courts of the USA, Canada, UK and Australia.
It is the reasoning by Mr Justice Bosson which is worthy of note and comment
{90} All of which, I assume, is little comfort to the Huguenins, who now are compelled by law to compromise the very religious beliefs that inspire their lives. Though the rule of law requires it, the result is sobering. It will no doubt leave a tangible mark on the Huguenins and others of similar views.
{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.
{91} On a larger scale, this case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less. The Huguenins are free to think, to say, to believe, as they wish; they may pray to the God of their choice and follow those commandments in their personal lives wherever they lead. The Constitution protects the Huguenins in that respect and much more. But there is a price, one that we all have to pay somewhere in our civic life.
{92} In the smaller, more focused world of the marketplace, of commerce, of public accommodation, the Huguenins have to channel their conduct, not their beliefs, so as to leave space for other Americans who believe something different. That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say to the Huguenins, with the utmost respect: it is the price of citizenship.
As a lawyer I come across a lot of clap trap masquerading as legal reasoning but this particular piece is in a class of its own. The idea that the price of citizenship is to compromise personal beliefs is breathtaking in its intolerance furthermore there is a complete lack of logic in saying
"what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others."
and then forcing the Huguenins to do what they do not want to do.
I certainly agree that "all citizens must compromise, if only a little, to accommodate the contrasting values of others." but that raises the fundamental question of what compromise, what accommodation, was shown to the "contrasting values" of the Huguenins ?
I certainly agree that "all citizens must compromise, if only a little, to accommodate the contrasting values of others." but that raises the fundamental question of what compromise, what accommodation, was shown to the "contrasting values" of the Huguenins ?
Similarly with the remark
"That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. "
This reasoning does not logically lead to forcing people to act contrary to their conscience. Forcing people to act contrary to their conscience as this case has done, does not show any "sense of respect" whatsoever for others. In fact, speaking as a Non American, what strikes me most about this judgment and its reasoning is how profoundly "Un American" it is. Freedom and personal liberty are, or at least were, the founding principles of the United States and the decision in this case and the reasoning behind it are profoundly contrary to both those principles.
Respect for others would have said that the Huguenins should not be forced to act contrary to their conscience and would have held that the Lesbian couple were fully legally entitled to hold their "Commitment Ceremony" but they could not force anyone else to participate in it or endorse it. Instead what the Supreme Court of New Mexico has decided is that the Huguenins must lose their liberty of choice and conscience in the name of "equality".
To paraphrase that great American, Benjamin Franklin
"They who can give up essential liberty to obtain a little temporary {equality}, deserve neither liberty nor {equality}".
To paraphrase that great American, Benjamin Franklin
"They who can give up essential liberty to obtain a little temporary {equality}, deserve neither liberty nor {equality}".
Thursday, 1 August 2013
Same Sex Marriage - Defining Marriage the Mormon Effect
Today I was in Court in Chorley Lancashire just down the road from one of the 2 Mormon Temples in Britain. The Mormon Church in Lancashire is currently running a Pageant at the Temple to celebrate 175 years since the first Mormon Missionaries arrived in Britain with many Mormons in America, including Mitt Romney, able to trace their ancestry back to those early converts. I confess I have a soft spot for the Mormons and have visited, though not entered (see Gallagher (Valuation Officer) V Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56 ) the Salt Lake City Temple and both British Temples. Mormon History is colourfull and fascinating.
So how you may be wondering does this relate to the passing of the Marriage (Same Sex Couples) Act 2013 ? The Act changes the definition of Marriage as historically understood in Britain by section 1(1) which says
"Marriage of same sex couples is lawful."
The previous legal definition of Marriage was first formally stated by Lord Penzance in the 1866 case of Hyde v. Hyde [L.R.] 1 P. & D. 130 where he said that Marriage in English law meant
" the voluntary union for life of one man and one woman, to the exclusion of all others"
A similar approach was taken by the US Supreme Court in the 1878 case of Reynolds v USA 98 U.S. 145
The common factor in both cases was that they concerned Mormon Marriages. As is fairly well known the Mormon Church practiced Polygamy (often called plural marriage) until it banned the practice in 1890 . In fairness to the modern day Mormon Church (proper title Church of Jesus Christ of Latter Day Saints) I should make it clear that it has never endorsed Polygamy since 1890 and the practice is totally forbidden by the Church. Nevertheless Polygamy was a major feature of 19th Century Mormonism and it is entirely because of that history that there was felt to be any need to formally define Marriage in Law.
So does the ending of the historical definition of Marriage open the way to Polygamy ? As is being discovered in Canada permitting Same-Sex Marriage makes it more difficult to put forward a logical argument against future attempts to change the law so as to permit Polygamy or Plural Marriage between consenting Adults.
However the change in the law which is happening on both sides of the Atlantic also raises the question of how far Government will go to enforce obedience to the new definition and there the 19th Century Mormon experience is instructive and sobering.
The practice of Polygamy by the Mormon Church was objected to by other Americans simply because they disagreed with it. Despite many lurid novels suggesting coercive Polygamy there is little objective evidence to support this and much evidence that many Mormon wives supported "the principle" as it became known and indeed spoke in its defence. Therefore provided the practice was voluntary one would have thought that the Mormons would have been left alone but that was certainly not the case.
The United States Congress passed a number of increasingly draconian laws against Polygamy and against Polygamists, ie Mormons, in ways that restricted their Civil and Constitutional rights way beyond simply banning the practice of Polygamy itself.
The 1862 Morrill Anti-Bigamy Act 1862 banned bigamy and limited church and non-profit ownership in any territory of the United States to $50,000 so targeting the Mormon Church in the Utah territory
The 1874 Poland Act eliminated Territorial Courts and Law enforcement officers in the Utah Territory, contrary to the normal practice of the US in its territories, and also restricted the ability of those living as polygamists to serve as jurors even if they had not been convicted of any crime. As was discussed in Reynolds v USA 1878 this provision led to a wonderful exchange with one potential juror
"Are you living in polygamy?" .... I am only a fornicator."
The 1882 Edmunds Act prohibited "bigamous" or "unlawful cohabitation" without requiring any evidence that there had been any form of Marriage ceremony polygamous or otherwise. It revoked polygamists' right to vote, made them ineligible for jury service, and prohibited them from holding political office.
Finally the 1887 Edmunds- Tucker Act dissolved the Mormon Church and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this extraordinarily draconian act being endorsed the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States 136 U.S. 1 (1890).
Fortunately for Mormonism the 1890 decision to abandon Polygamy allowed the Church to return to legality, eventually its property was restored and Utah entered the United States as a State with a Constitution which banned Polygamy.
The history of Mormon Polygamy might seem only of academic interest but I suggest that studying what happened is relevant today. What the Mormon experience shows is that ultimately Government is willing to use coercive force to defend its own definition of Marriage and to destroy those religions or forces that oppose that definition. The history of Mormonism also shows that Constitutional guarantees of Religious Freedom can easily be overridden and ignored in this situation.
Now that Government on both sides of the Atlantic are redefining marriage will they ultimately decide to convict those religious leaders who speak out against the new definition and abolish or expropriate the property of those religions that do not conform to the new ideology. Based on the Mormon experience I would not be surprised. As the Mormons showed changing the definition of something as fundamental as Marriage is a step with enormous consequences.
So how you may be wondering does this relate to the passing of the Marriage (Same Sex Couples) Act 2013 ? The Act changes the definition of Marriage as historically understood in Britain by section 1(1) which says
"Marriage of same sex couples is lawful."
The previous legal definition of Marriage was first formally stated by Lord Penzance in the 1866 case of Hyde v. Hyde [L.R.] 1 P. & D. 130 where he said that Marriage in English law meant
" the voluntary union for life of one man and one woman, to the exclusion of all others"
A similar approach was taken by the US Supreme Court in the 1878 case of Reynolds v USA 98 U.S. 145
The common factor in both cases was that they concerned Mormon Marriages. As is fairly well known the Mormon Church practiced Polygamy (often called plural marriage) until it banned the practice in 1890 . In fairness to the modern day Mormon Church (proper title Church of Jesus Christ of Latter Day Saints) I should make it clear that it has never endorsed Polygamy since 1890 and the practice is totally forbidden by the Church. Nevertheless Polygamy was a major feature of 19th Century Mormonism and it is entirely because of that history that there was felt to be any need to formally define Marriage in Law.
So does the ending of the historical definition of Marriage open the way to Polygamy ? As is being discovered in Canada permitting Same-Sex Marriage makes it more difficult to put forward a logical argument against future attempts to change the law so as to permit Polygamy or Plural Marriage between consenting Adults.
However the change in the law which is happening on both sides of the Atlantic also raises the question of how far Government will go to enforce obedience to the new definition and there the 19th Century Mormon experience is instructive and sobering.
The practice of Polygamy by the Mormon Church was objected to by other Americans simply because they disagreed with it. Despite many lurid novels suggesting coercive Polygamy there is little objective evidence to support this and much evidence that many Mormon wives supported "the principle" as it became known and indeed spoke in its defence. Therefore provided the practice was voluntary one would have thought that the Mormons would have been left alone but that was certainly not the case.
The United States Congress passed a number of increasingly draconian laws against Polygamy and against Polygamists, ie Mormons, in ways that restricted their Civil and Constitutional rights way beyond simply banning the practice of Polygamy itself.
The 1862 Morrill Anti-Bigamy Act 1862 banned bigamy and limited church and non-profit ownership in any territory of the United States to $50,000 so targeting the Mormon Church in the Utah territory
The 1874 Poland Act eliminated Territorial Courts and Law enforcement officers in the Utah Territory, contrary to the normal practice of the US in its territories, and also restricted the ability of those living as polygamists to serve as jurors even if they had not been convicted of any crime. As was discussed in Reynolds v USA 1878 this provision led to a wonderful exchange with one potential juror
"Are you living in polygamy?" .... I am only a fornicator."
The 1882 Edmunds Act prohibited "bigamous" or "unlawful cohabitation" without requiring any evidence that there had been any form of Marriage ceremony polygamous or otherwise. It revoked polygamists' right to vote, made them ineligible for jury service, and prohibited them from holding political office.
Finally the 1887 Edmunds- Tucker Act dissolved the Mormon Church and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this extraordinarily draconian act being endorsed the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States 136 U.S. 1 (1890).
Fortunately for Mormonism the 1890 decision to abandon Polygamy allowed the Church to return to legality, eventually its property was restored and Utah entered the United States as a State with a Constitution which banned Polygamy.
The history of Mormon Polygamy might seem only of academic interest but I suggest that studying what happened is relevant today. What the Mormon experience shows is that ultimately Government is willing to use coercive force to defend its own definition of Marriage and to destroy those religions or forces that oppose that definition. The history of Mormonism also shows that Constitutional guarantees of Religious Freedom can easily be overridden and ignored in this situation.
Now that Government on both sides of the Atlantic are redefining marriage will they ultimately decide to convict those religious leaders who speak out against the new definition and abolish or expropriate the property of those religions that do not conform to the new ideology. Based on the Mormon experience I would not be surprised. As the Mormons showed changing the definition of something as fundamental as Marriage is a step with enormous consequences.
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