There have been a number of stories recently in the Newspapers concerning a
report by the Joint Parliamentary Human Rights Committee which claimed that the current legislation preventing a Catholic from being Monarch and preventing the Monarch from marrying a Catholic is
" contrary to Article 14 European Convention on Human Rights in conjunction with Article 12 and also arguably contrary to the freedom of religion of Catholics protected by Article 9"
well all I can say is what utter rubbish and worrying rubbish considering that it is coming from a Committee that is supposed to consist of Parliamentarians who are supposed to be experts in Human Rights Law.
The problem arises from the Act of Settlement of 1701 which states in Article 111
"whosoever shall hereafter come to the Possession of this Crown shall joyn in Communion with the Church of England as by Law established"
this provision was confirmed by Article 11 of the Union with Scotland Act 1707 (passed by the English Parliament) and Article 11 of the Union with England Act 1707 (passed by the Scottish Parliament) both Acts refer to the requirement that the Monarch shall be a Protestant and reinforce this by the specific requirement that nobody who is, or is married to, a "papist" shall be King or Queen of the United Kingdom.
The reason why I say that the report by the Parliamentary Committee is rubbish is that the Act of Settlement does not prevent anyone from becoming a Catholic or from marrying a Catholic it merely prevents such a person from becoming or remaining King or Queen of the United Kingdom and nowhere in the European Convention on Human Rights is there any provision which gives anyone the right to be King or Queen of the United Kingdom
Article 12 of the Convention says
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 14 says
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
If (for example) Prince Charles had married a practicing Catholic then under the Act of Settlement he would have lost his place in line of succession to the throne but the Act of Settlement would not have prevented him getting married therefore on what possible basis can it be said that there is any breach of Article 12 ? I repeat the point that nowhere in the European Convention on Human Rights is there any provision which gives anyone the right to be King or Queen of the United Kingdom. Similarly with the suggested breach of Article 14, the case law by the European Court of Human Rights makes it quite clear that Article 14 does not give any "free standing" rights which means that there can only be a breach of Article 14 if there is a breach of one of the other Articles of the Convention. In this case since Article 12 is not breached Article 14 cannot be.
There is similar legal inaccuracy in the suggestion that the Act of Settlement is "arguably contrary to the freedom of religion of Catholics protected by Article 9".
Article 9 of the Convention says
Everyone has the right to freedom of thought, conscience and religion this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
The suggestion that the Act of Settlement is in breach of Article 9 runs contrary to both the European and UK case law which has restricted freedom of religion to simply being free to have a religion and to practice it privately. See the cases of McClintock, or Ladelle as examples where it is not a breach of Article 9 to insist on particular behaviour as a requirement for holding a particular office.
Since the Monarch of the UK is also head of the (Protestant) Church of England it is quite logical that she has to be "in communion with" the Church of England. Even though the Monarch is specifically prevented by name from being a "papist" in practice the Monarch is also prevented from being a Buddhist, Jew, Muslim, Mormon etc since none of these religions is "in communion" with the Church of England. Since it is a requirement of the job that the monarch be a Protestant Christian, that does not infringe on the freedom of Catholics and others to practice and manifest their religion it merely prevents them being monarch which is not the same thing as a breach of Article 9
As a Catholic you might expect me to support the proposals by the Parliamentary Committee but actually their report really annoys me because it is part of the general, undemocratic tendency to "legalise" political decisions and to tell MP's that they have no choice in the matter. If MP's were to decide themselves that they wanted to amend the Act of Settlement because they felt it was the right thing to do then fine that is a democratic Parliamentary decision but if they merely do it because they are told they have no legal choice in the matter then that is undemocratic and wrong.
As it happens the provisions of the Act of Settlement do not bother me in the slightest. If given the choice between getting rid of the Act of Settlement 1701 or the Equality Bill 2010 I have no hesitation in saying that it is the 2010 Bill which poses a threat to the Religious freedom of Roman Catholics not the 1701 Act
Tuesday, 26 January 2010
Myths about Catholics and the Monarchy
There has recently been a report published by the Joint Parliamentary Human Rights Committee dealing with the fact that a Catholic cannot be Monarch and I will do a separate Blog on that subject however I will deal here with two myths that constantly resurrect themselves whenever this subject rears its head
MYTH ONE: A Catholic cannot be Prime Minister
There is absolutely NO legal restriction on a Catholic being Prime Minister. Tony Blair helped to give the myth credibility by waiting until he left Number 10 before he became a Catholic but that was his decision and was not because there was any legal problem. Anyway he is now (apparently) a Catholic however I notice that since his conversion he has taken the opportunity to put the Pope right on a few questions of Christian Theology which does tend to make me wonder if he misunderstood Catholic teaching on Papal Infallibility and thought it referred to Prime Ministerial infallibility
MYTH TWO: Changing the Act of Settlement would depose Queen Elizabeth
The purpose of the Act of Settlement of 1701 was to allow the Royal succession to leapfrog over the next in line to the throne who were Catholics and descended from the Stuart monarchs. It is therefore often suggested that if the Act of Succession was changed this would meant that the Royal Succession would revert to the Stuart line and Prince Franz of Bavaria would become King in place of Queen Elizabeth 2nd. This suggestion is false because of a basic principle of law that the repeal or changing of a statute does not affect the legality of what has happened previously. For example if the law of Inheritance was to be changed that would not affect the property rights of those who inherited under the earlier law. Similarly changing the Act of Settlement would not affect the position of Queen Elizabeth or the rights of Prince Charles or Prince William to succeed her
MYTH ONE: A Catholic cannot be Prime Minister
There is absolutely NO legal restriction on a Catholic being Prime Minister. Tony Blair helped to give the myth credibility by waiting until he left Number 10 before he became a Catholic but that was his decision and was not because there was any legal problem. Anyway he is now (apparently) a Catholic however I notice that since his conversion he has taken the opportunity to put the Pope right on a few questions of Christian Theology which does tend to make me wonder if he misunderstood Catholic teaching on Papal Infallibility and thought it referred to Prime Ministerial infallibility
MYTH TWO: Changing the Act of Settlement would depose Queen Elizabeth
The purpose of the Act of Settlement of 1701 was to allow the Royal succession to leapfrog over the next in line to the throne who were Catholics and descended from the Stuart monarchs. It is therefore often suggested that if the Act of Succession was changed this would meant that the Royal Succession would revert to the Stuart line and Prince Franz of Bavaria would become King in place of Queen Elizabeth 2nd. This suggestion is false because of a basic principle of law that the repeal or changing of a statute does not affect the legality of what has happened previously. For example if the law of Inheritance was to be changed that would not affect the property rights of those who inherited under the earlier law. Similarly changing the Act of Settlement would not affect the position of Queen Elizabeth or the rights of Prince Charles or Prince William to succeed her
Tuesday, 22 December 2009
Wednesday, 16 December 2009
R v JFS School [2009] UKSC 15
I have now had time for a detailed reading of the Supreme Court Judgment in R v JFS School [2009] UKSC 15
The case involved the admissions policy of JFS school, a state secondary school that has been educating Jewish children in London since 1732. M’s father, wanted M to go to the school: but he wasn’t given a place because according to Orthodox Jewish principles, M is not recognised as Jewish because his mother was not herself Jewish according to those rules. In Jewish Law descent is matriineal ie through the mother. M could become an Orthodox Jew when he came of age and personally chose his religion but until then he was fixed with the religion of his parents which may have been Jewish but was clearly not Orthodox Jewish
M's mother is Italian and was originally a Catholic who converted to Judaism under the auspices of a Non Orthodox Liberal synagogue but Orthodox Jews did not recognise her conversion. M's father claimed racial discrimination, on the basis that his son was turned down because of his mother’s non-Jewish ethnic origins.
The Court split 5-4 on the main issue: the majority holding that the admissions policy amounts to direct discrimination on racial grounds.
Lady Hale said in para. 66
Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the child’s ethnic origins? In my view, it clearly is. M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic. The fact that the Office of the Chief Rabbi would have over-looked his mother’s Italian origins, had she converted to Judaism in a procedure which they would recognise, makes no difference to this fundamental fact. M was rejected, not because of who he is, but because of who his mother is. That in itself is not enough. If M had been rejected because his mother shopped in Waitrose rather than Marks and Spencer, that would not have been because of her or his ethnicity. But it was because his mother was not descended in the matrilineal line from the original Jewish people that he was rejected. This was because of his lack of descent from a particular ethnic group.
Lord Mance said in para. 86:
Some other Jewish denominations, the Court was told, have other tests, e.g. looking, or looking also, at the patrilineal line. But all such tests look, in one way or another, at ethnic origins…. This case cannot therefore be viewed as a mere disagreement between different Jewish denominations, for example about the criteria for conversion. It turns, more fundamentally, on whether it is permissible for any school to treat one child less favourably than another because the child does not have whatever ancestry is required, in the school’s view, to make the child Jewish.
All of these rulings can be regarded as sound on a merely technical level but leads to a result which Lord Rodger’s describes in para. 226 as extraordinary.
The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.
He went on in para 228
Lady Hale says that M was rejected because of his mother’s ethnic origins which were Italian and Roman Catholic. I respectfully disagree. His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices. It was her resulting non-Jewish religious status in the Chief Rabbi’s eyes, not the fact that her ethnic origins were Italian and Roman Catholic, which meant that M was not considered for admission. The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi; they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic.
and at para. 230
Even supposing that the governors knew about his origins, they were quite irrelevant and played no part in their decision. The governors were simply asked to consider admitting him as the son of a Jewish mother. They declined to do so because his mother had not converted under Orthodox auspices. It was her non-Orthodox conversion that was crucial. In other words, the only ground for treating M less favourably than the comparator is the difference in their respective mothers’ conversions – a religious, not a racial, ground.
In Para 233 he goes on
The aim of the School, to instil Jewish values into children who are Jewish in the eyes of Orthodoxy, is legitimate. And, from the standpoint of an Orthodox school, instilling Jewish values into children whom Orthodoxy does not regard as Jewish, at the expense of children whom Orthodoxy does regard as Jewish, would make no sense. That is plainly why the School’s oversubscription policy allows only for the admission of children recognised as Jewish by the Office of the Chief Rabbi. I cannot see how a court could hold that this policy is a disproportionate means of achieving the School’s legitimate aim
The case involved the admissions policy of JFS school, a state secondary school that has been educating Jewish children in London since 1732. M’s father, wanted M to go to the school: but he wasn’t given a place because according to Orthodox Jewish principles, M is not recognised as Jewish because his mother was not herself Jewish according to those rules. In Jewish Law descent is matriineal ie through the mother. M could become an Orthodox Jew when he came of age and personally chose his religion but until then he was fixed with the religion of his parents which may have been Jewish but was clearly not Orthodox Jewish
M's mother is Italian and was originally a Catholic who converted to Judaism under the auspices of a Non Orthodox Liberal synagogue but Orthodox Jews did not recognise her conversion. M's father claimed racial discrimination, on the basis that his son was turned down because of his mother’s non-Jewish ethnic origins.
The Court split 5-4 on the main issue: the majority holding that the admissions policy amounts to direct discrimination on racial grounds.
Lady Hale said in para. 66
Is the criterion adopted by the Chief Rabbi, and thus without question by the school, based upon the child’s ethnic origins? In my view, it clearly is. M was rejected because of his mother’s ethnic origins, which were Italian and Roman Catholic. The fact that the Office of the Chief Rabbi would have over-looked his mother’s Italian origins, had she converted to Judaism in a procedure which they would recognise, makes no difference to this fundamental fact. M was rejected, not because of who he is, but because of who his mother is. That in itself is not enough. If M had been rejected because his mother shopped in Waitrose rather than Marks and Spencer, that would not have been because of her or his ethnicity. But it was because his mother was not descended in the matrilineal line from the original Jewish people that he was rejected. This was because of his lack of descent from a particular ethnic group.
Lord Mance said in para. 86:
Some other Jewish denominations, the Court was told, have other tests, e.g. looking, or looking also, at the patrilineal line. But all such tests look, in one way or another, at ethnic origins…. This case cannot therefore be viewed as a mere disagreement between different Jewish denominations, for example about the criteria for conversion. It turns, more fundamentally, on whether it is permissible for any school to treat one child less favourably than another because the child does not have whatever ancestry is required, in the school’s view, to make the child Jewish.
All of these rulings can be regarded as sound on a merely technical level but leads to a result which Lord Rodger’s describes in para. 226 as extraordinary.
The majority’s decision leads to such extraordinary results, and produces such manifest discrimination against Jewish schools in comparison with other faith schools, that one can’t help feeling that something has gone wrong.
He went on in para 228
Lady Hale says that M was rejected because of his mother’s ethnic origins which were Italian and Roman Catholic. I respectfully disagree. His mother could have been as Italian in origin as Sophia Loren and as Roman Catholic as the Pope for all that the governors cared: the only thing that mattered was that she had not converted to Judaism under Orthodox auspices. It was her resulting non-Jewish religious status in the Chief Rabbi’s eyes, not the fact that her ethnic origins were Italian and Roman Catholic, which meant that M was not considered for admission. The governors automatically rejected M because he was descended from a woman whose religious status as a Jew was not recognised by the Orthodox Chief Rabbi; they did not reject him because he was descended from a woman whose ethnic origins were Italian and Roman Catholic.
and at para. 230
Even supposing that the governors knew about his origins, they were quite irrelevant and played no part in their decision. The governors were simply asked to consider admitting him as the son of a Jewish mother. They declined to do so because his mother had not converted under Orthodox auspices. It was her non-Orthodox conversion that was crucial. In other words, the only ground for treating M less favourably than the comparator is the difference in their respective mothers’ conversions – a religious, not a racial, ground.
In Para 233 he goes on
The aim of the School, to instil Jewish values into children who are Jewish in the eyes of Orthodoxy, is legitimate. And, from the standpoint of an Orthodox school, instilling Jewish values into children whom Orthodoxy does not regard as Jewish, at the expense of children whom Orthodoxy does regard as Jewish, would make no sense. That is plainly why the School’s oversubscription policy allows only for the admission of children recognised as Jewish by the Office of the Chief Rabbi. I cannot see how a court could hold that this policy is a disproportionate means of achieving the School’s legitimate aim
Lord Brown agrees at para para. 255 quoted Munby J in the High Court case of E v JFS (Jewish Free School) [2008] EWHC 1535/1536 (Admin)
Adopting some alternative admissions policy based on such factors as adherence or commitment to Judaism (even assuming that such a concept has any meaning for this purpose in Jewish religious law) would not be a means of achieving JFS’s aims and objectives; on the contrary it would produce a different school ethos. If JFS’s existing aims and objectives are legitimate, as they are, then a policy of giving preference to children who are Jewish applying Orthodox Jewish principles is, they say, necessary and proportionate – indeed, as it seems to me, essential – to achieve those aims . . . JFS exists as a school for Orthodox Jews. If it is to remain a school for Orthodox Jews it must retain its existing admissions policy; if it does not, it will cease to be a school for Orthodox Jews. Precisely. To this argument there is, and can be, no satisfactory answer.
As we Lawyers put it "I respectfully agree" because he recognised that the decision of the Court produced an absurdity and the Law should not do that certainly not the law as propounded by a Supreme CourtFaith Schools and the JFS Case
There has been a lot of Internet discussion about this case and a common theme has been criticism of JFS policy because JFS, like other Faith Schools is publicly funded.
Can I just make one point crystal clear
From a Legal point of view the fact that the school is publicly funded was totally irrelevant to the decision because private Schools are covered by the Race Relations Act just as much as state schools. If the JFS was an entirely 100% private school funded entirely by the Orthodox Jewish Community the decision in the case would have been the same.
There is a valid argument over whether there should be state funded religious schools but this is not the case over which that argument should be had.
The issue in this case is whether the Courts of Britain should have the power to decide that a particular person is Jewish when the Chief Rabbi says they are not.
Discrimination Laws v Freedom
Two deeply worrying cases in two days.
Lillian Ladele v Islington Council [2009] EWCA Civ 1357
R v JFS School [2009] UKSC 15
Lillian Ladele a Christian Registrar of Marriages who asked to be excused from performing Civil Partnerships (Same Sex Marriage in all but name) lost her claim for Religious Discrimination before the Court of Appeal. The last paragraph of the judgment makes it clear how badly Lillian was treated by her employers Islington Council but the fact that she had behaved properly and they had behaved disgracefully did not help her.
It is important to remember that Lillian was not trying to create a fuss or become a martyr. She was swapping with colleagues so that they did the Civil Partnerships and she did the marriages or other Registrar tasks so nobody who wanted a Civil Partnership was affected or even knew about her.
Two Gay registrars however complained about her doing this even though no Gay person was actually affected. In addition when she wrote to her senior manager asking if she could be excused from doing Civil Partnerships her letter was treated as "Gross Misconduct" even though it was described by both the EAT and the Court of Appeal as a "thoughtful and temperate letter" In addition private information about Lillian Ladele was provided to those Gay Employees and shared with Islington's LGBT [Lesbian Gay Bisexual Transgender] Forum.
What Islington Council clearly lack is an understanding of true Tolerance and a willingness to live and let live
An even more worrying case is the decision by the UK Supreme Court that the admissions policy of the Jewish Free School was illegal under Race Relations Law even though the admissions policy was based on historic Jewish law going back over 3000 years.
As a lawyer I can understand the technical legal argument but as a human being I regard it as a profoundly dangerous extension of state power. On the basis of this Judgment an adult who Orthodox Jews do not accept as Jewish can apply to become an Orthodox Rabbi and the Orthodox Synagogue cannot say no.
What next will the courts have the power to say "The Pope does not accept that you are a Catholic but we do and so you are entitled to become a Catholic Priest". On the basis of this judgment that is a possibility because at its heart what the judgment of the Supreme Court does is to attack the right of organisations and religions to have their own personal identity. It is the most insidious form of totalitarianism
Lillian Ladele v Islington Council [2009] EWCA Civ 1357
R v JFS School [2009] UKSC 15
Lillian Ladele a Christian Registrar of Marriages who asked to be excused from performing Civil Partnerships (Same Sex Marriage in all but name) lost her claim for Religious Discrimination before the Court of Appeal. The last paragraph of the judgment makes it clear how badly Lillian was treated by her employers Islington Council but the fact that she had behaved properly and they had behaved disgracefully did not help her.
It is important to remember that Lillian was not trying to create a fuss or become a martyr. She was swapping with colleagues so that they did the Civil Partnerships and she did the marriages or other Registrar tasks so nobody who wanted a Civil Partnership was affected or even knew about her.
Two Gay registrars however complained about her doing this even though no Gay person was actually affected. In addition when she wrote to her senior manager asking if she could be excused from doing Civil Partnerships her letter was treated as "Gross Misconduct" even though it was described by both the EAT and the Court of Appeal as a "thoughtful and temperate letter" In addition private information about Lillian Ladele was provided to those Gay Employees and shared with Islington's LGBT [Lesbian Gay Bisexual Transgender] Forum.
What Islington Council clearly lack is an understanding of true Tolerance and a willingness to live and let live
An even more worrying case is the decision by the UK Supreme Court that the admissions policy of the Jewish Free School was illegal under Race Relations Law even though the admissions policy was based on historic Jewish law going back over 3000 years.
As a lawyer I can understand the technical legal argument but as a human being I regard it as a profoundly dangerous extension of state power. On the basis of this Judgment an adult who Orthodox Jews do not accept as Jewish can apply to become an Orthodox Rabbi and the Orthodox Synagogue cannot say no.
What next will the courts have the power to say "The Pope does not accept that you are a Catholic but we do and so you are entitled to become a Catholic Priest". On the basis of this judgment that is a possibility because at its heart what the judgment of the Supreme Court does is to attack the right of organisations and religions to have their own personal identity. It is the most insidious form of totalitarianism
Monday, 14 December 2009
Harassment and Hatred in Liverpool and Canada
Two cases this week involving Religion and Free Speech are interesting. In Liverpool a Christian couple were cleared on a charge of harassing a Muslim guest who was staying in their Hotel and in Alberta, Canada a Christian Pastor was cleared on an allegation of inciting hatred of homosexuals. Both cases were very different in their facts but underlying them both is the common question of whether or where the law should become involved in situations where people are offended by another person expressing their personal opinions.
In the Liverpool case Ben and Sharon Vogelzang were charged with religiously aggravated use of
"threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress"
contrary to s5 Public Order Act 1986. They were alleged to have insulted a Muslim guest at their hotel when she came down wearing a Hijab, they were alleged to have described Mohammed as a warlord and the Hijab as a symbol of female subjugation. At the end of a two day trial the District Judge rejected the prosecution case on the basis that he was not satisfied about the complainants evidence.
Following the acquittal the Crown Prosecution Service has been criticised for its decision to bring the case but I do not agree with that way of thinking. I am a former Crown Prosecutor and I know that it is the job of courts, not prosecutors, to decide whether someone is guilty or innocent and no prosecutor should be criticised simply because a judge did not believe a witness. My criticism of the CPS is that the case should not have been brought regardless of whether the verdict was guilty or not guilty, to put it in terms of
The Code for Crown Prosecutors there was no "public interest" in bringing to court a case which essentially involved an argument, maybe a heated argument, but nevertheless nothing more than an argument. The Public Order Act exists in order to preserve the public peace and it should not be misused in order to stifle the expression of views however strongly expressed
In a case called Majrowski v Guy's and St. Thomas' NHS Trust [2006] UKHL 34 (which dealt with allegations of harassment under the Protection from Harassment Act 1997) in para 33 Lord Nichols said
"courts will have in mind that annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people."
whilst in Dehal v CPS [2005] EWHC 2154 (Admin) Mr Justice Moses said, in para 5
"the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law"
Similarly in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, Jacob LJ said (at paragraphs 17-19):
“in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene"
I would suggest that Police and Prosecutors should remember these words when deciding whether to arrest people or to bring a prosecution in cases involving arguments. It may be surprising to have a situation where a Hotelier gets involved in an argument with a customer over religion and it can certainly be regarded as bad business sense but that is a long way from being anywhere close to a situation where a criminal investigation let alone a prosecution was justified. The Vogelzang case does not, of course create any legal precedent but I hope that the result and the public debate on the case will discourage the Police and CPS from bringing a similar prosecution in the future
The Canadian case of Boissoin v. Lund, 2009 ABQB 592 (CanLII) is however a precedent and it could become an important one. The case involved a letter written to an Alberta Newspaper and published on June 17 2002. The letter was written by the Rev. Stephen Boissoin, Chairman of the Concerned Christian Coalition, Red Deer, Alberta and it strongly criticised suggestions that Schools in Alberta should teach about or support homosexual practice (you can read the full letter in para 13 of the judgment)
Following the publication of the letter a Dr Lund brought a case under s3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act which says
"No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a class of persons, or
(b) is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons."
It is important to note that this did not involve a criminal prosecution by Dr Lund but rather the bringing of a civil claim before the Alberta Human Rights and Citizenship Commission which culminated in the Commission issuing an Injunction preventing Rev Boisson writing similar letters or expressing similar views in the future. In that respect the case had interesting, and disturbing parallels with the Australian case of The Islamic Council of Victoria v Catch the Fire Ministries [2004] VCAT 2510 where the Islamic Society sought an Injunction to prevent two Christian Pastors expressing their views on Islam.
The Injunction which was granted in the Catch the Fire case and the similar gagging Injunction initially granted in the Boisson case both demonstrate the dangers of giving Courts dealing with discrimination issues the power to issue Injunctions. It is the danger of abuse of Injunctions to prevent free debate, and the misuse of the concepts of Harassment, vilification etc which is the main reason why it is important to ensure that the current Equality Bill does not include a provision permitting Civil Claims involving allegations of Religious or Sexual Orientation Harassment.
The Boisson judgment merits careful reading. A large part of it deals with specifically Canadian issues regarding the legislative powers of the province of Alberta under the Canadian Constitution and so has no specific relevance to jurisdictions outside Canada but Paras 15 - 23 deals with issues of general relevance such as the danger of trying to assess whether a letter incited violence by reference to a newspaper report rather than by evidence from a witness. It also referred to the danger of courts making assumptions rather than requiring factual proof.
The second point that the Judgment makes is that letters (and by analogy posters, interviews etc) have to be read in their totality rather than "cherry picking" particular bits for condemnation, context is important. For example in paras 63-64 the Judge rejected evidence about how "Impressionable" young people might be affected by the kind of thing said in the letter by pointing out that there was no evidence that such "impressionable" young people tended to be readers of Newspaper letters pages.
The judgment was also critical of a cross examination question which was merely scurrilous rather than designed to elicit the truth
"explain the difference between the letter and Adolf Hitler’s book Mein Kampf"
This rather reminded me of a similar inappropriate question in the Catch the Fire case "do Muslims and Christians pray to the same God".
But the core of the judgment (for me at any rate is in para 95
"complaints about factual error or false reasoning by the author would seem to be properly met, at least at first instance, by counter speech correcting those failures - not by restraining the remarks"
Those words should be engraved on the desks of all Police "Hate Crime Units"
In the Liverpool case Ben and Sharon Vogelzang were charged with religiously aggravated use of
"threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress"
contrary to s5 Public Order Act 1986. They were alleged to have insulted a Muslim guest at their hotel when she came down wearing a Hijab, they were alleged to have described Mohammed as a warlord and the Hijab as a symbol of female subjugation. At the end of a two day trial the District Judge rejected the prosecution case on the basis that he was not satisfied about the complainants evidence.
Following the acquittal the Crown Prosecution Service has been criticised for its decision to bring the case but I do not agree with that way of thinking. I am a former Crown Prosecutor and I know that it is the job of courts, not prosecutors, to decide whether someone is guilty or innocent and no prosecutor should be criticised simply because a judge did not believe a witness. My criticism of the CPS is that the case should not have been brought regardless of whether the verdict was guilty or not guilty, to put it in terms of
The Code for Crown Prosecutors there was no "public interest" in bringing to court a case which essentially involved an argument, maybe a heated argument, but nevertheless nothing more than an argument. The Public Order Act exists in order to preserve the public peace and it should not be misused in order to stifle the expression of views however strongly expressed
In a case called Majrowski v Guy's and St. Thomas' NHS Trust [2006] UKHL 34 (which dealt with allegations of harassment under the Protection from Harassment Act 1997) in para 33 Lord Nichols said
"courts will have in mind that annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people."
whilst in Dehal v CPS [2005] EWHC 2154 (Admin) Mr Justice Moses said, in para 5
"the criminal law should not be invoked unless and until it is established that the conduct which is the subject of the charge amounts to such a threat to public disorder as to require the invocation of the criminal as opposed to the civil law"
Similarly in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, Jacob LJ said (at paragraphs 17-19):
“in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene"
I would suggest that Police and Prosecutors should remember these words when deciding whether to arrest people or to bring a prosecution in cases involving arguments. It may be surprising to have a situation where a Hotelier gets involved in an argument with a customer over religion and it can certainly be regarded as bad business sense but that is a long way from being anywhere close to a situation where a criminal investigation let alone a prosecution was justified. The Vogelzang case does not, of course create any legal precedent but I hope that the result and the public debate on the case will discourage the Police and CPS from bringing a similar prosecution in the future
The Canadian case of Boissoin v. Lund, 2009 ABQB 592 (CanLII) is however a precedent and it could become an important one. The case involved a letter written to an Alberta Newspaper and published on June 17 2002. The letter was written by the Rev. Stephen Boissoin, Chairman of the Concerned Christian Coalition, Red Deer, Alberta and it strongly criticised suggestions that Schools in Alberta should teach about or support homosexual practice (you can read the full letter in para 13 of the judgment)
Following the publication of the letter a Dr Lund brought a case under s3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act which says
"No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that
(a) indicates discrimination or an intention to discriminate against a person or a class of persons, or
(b) is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons."
It is important to note that this did not involve a criminal prosecution by Dr Lund but rather the bringing of a civil claim before the Alberta Human Rights and Citizenship Commission which culminated in the Commission issuing an Injunction preventing Rev Boisson writing similar letters or expressing similar views in the future. In that respect the case had interesting, and disturbing parallels with the Australian case of The Islamic Council of Victoria v Catch the Fire Ministries [2004] VCAT 2510 where the Islamic Society sought an Injunction to prevent two Christian Pastors expressing their views on Islam.
The Injunction which was granted in the Catch the Fire case and the similar gagging Injunction initially granted in the Boisson case both demonstrate the dangers of giving Courts dealing with discrimination issues the power to issue Injunctions. It is the danger of abuse of Injunctions to prevent free debate, and the misuse of the concepts of Harassment, vilification etc which is the main reason why it is important to ensure that the current Equality Bill does not include a provision permitting Civil Claims involving allegations of Religious or Sexual Orientation Harassment.
The Boisson judgment merits careful reading. A large part of it deals with specifically Canadian issues regarding the legislative powers of the province of Alberta under the Canadian Constitution and so has no specific relevance to jurisdictions outside Canada but Paras 15 - 23 deals with issues of general relevance such as the danger of trying to assess whether a letter incited violence by reference to a newspaper report rather than by evidence from a witness. It also referred to the danger of courts making assumptions rather than requiring factual proof.
The second point that the Judgment makes is that letters (and by analogy posters, interviews etc) have to be read in their totality rather than "cherry picking" particular bits for condemnation, context is important. For example in paras 63-64 the Judge rejected evidence about how "Impressionable" young people might be affected by the kind of thing said in the letter by pointing out that there was no evidence that such "impressionable" young people tended to be readers of Newspaper letters pages.
The judgment was also critical of a cross examination question which was merely scurrilous rather than designed to elicit the truth
"explain the difference between the letter and Adolf Hitler’s book Mein Kampf"
This rather reminded me of a similar inappropriate question in the Catch the Fire case "do Muslims and Christians pray to the same God".
But the core of the judgment (for me at any rate is in para 95
"complaints about factual error or false reasoning by the author would seem to be properly met, at least at first instance, by counter speech correcting those failures - not by restraining the remarks"
Those words should be engraved on the desks of all Police "Hate Crime Units"
Subscribe to:
Posts (Atom)
