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Monday, 8 November 2010

Religion and the law once more: response to the Guardian

A shortened version of this article has been published here.

The Guardian’s legal blogger Afua Hirsch has posted on the subject of religion and the law, something I have written about on two previous occasions for Halsbury’s Law Exchange. It is worth returning to the subject to set something against what I believe are inconsistencies and misunderstandings in Ms Hirsch’s post.

Ms Hirsch first considers the remarks of the sentencing judge in the case of Roshonara Choudry, who had been convicted of the attempted murder of Stephen Timms MP. Ms Hirsch is angered by the judge’s comments that Timms’ own faith involved very different values from those of the defendant, and the judge’s suggestion of a “cosy” relationship between Christianity and the common law.

One might note that it ought not to be controversial to contrast the values of an innocent victim with those of an attempted murderer, and that it is undeniable that Christianity played an important role in the development of the common law (though not always for good, if one considers historic religious discrimination).

That said, the judge should not have made any comparison between the respective religious values of the defendant and victim, for the simple reason that it is irrelevant to the exercise of criminal sentencing. All that is relevant, aside from the circumstances of the offence itself, is the previous conduct of the defendant. In a country with freedom of religion this does not include her conduct in spiritual matters per se (pace Cherie Booth QC, who when sitting as a deputy judge controversially cited the apparently devout religious beliefs of a defendant as a mitigating factor). Membership or association with a group agitating for murder (religious or otherwise), on the other hand, would be an aggravating factor, as any previous conviction would be.

Equally, the victim’s beliefs or any other aspect of the victim’s life is also irrelevant, except for his conduct in relation to the specific offence – that is to say the usual criminal law considerations such as provocation. Even if he was a career criminal, unless one is to support vigilantism, that cannot provide mitigation much less exculpation of the defendant.

Next Ms Hirsch attempts to link the case with “a series of incidents that have appeared to pitch religious communities against the courts”. She offers two examples: (i) that of Gary MacFarlane, a registrar dismissed for refusing on religious grounds to conduct same-sex civil ceremonies, and (ii) that of George Bathurst-Norman, a judge recently disciplined for making comments about Israeli actions in Gaza during the trial of activists alleged to have damaged an armaments factory which had supplied weapons to Israel, something she says will have offended “pro-Israeli Jewish people”.

I have already blogged on the MacFarlane case, and won’t repeat anything save to observe that the relationship with the Timms case is slim.

As to the Bathurst-Norman incident, Ms Hirsch is wrong to suggest it would only have been pro-Israeli Jewish people who objected to his comments. A free society is founded on the principle of freedom under law. The protestors had the right to demonstrate outside the factory. They had any number of options to exercise their freedom of speech to denounce the factory and the Israeli government. They could petition their MPs, and Parliament in general. They could agitate for a change in the law to ban weapons exports. They could openly denounce Judaism and urge its members to convert or abandon the faith. But their own view of the conflict in the Middle East could make – or rather should have made – no difference to their liability for criminal damage. It might be relevant as a mitigating factor in sentencing, in so far as they could be said to be idealistic campaigners rather than wanton vandals or career criminals (though not in so far as the judge happened to agree with their political stance), but it should have been irrelevant to the issue of liability.

Ms Hirsch’s grapeshot approach continues:

"But if religious communities are to have specialist courts, as Lord Carey would want, what about minority-ethnic communities – badly under-represented in the judiciary – women and other groups affected by the various strands of discrimination? Either the legal system is premised on the notion that the court system can function fairly for all, or it ceases to function at all."

“Various strands of discrimination” is a controversial way of putting the judiciary’s lack of diversity, although I agree with her second sentence. It is worth adding something in relation to Sharia courts, which Ms Hirsch mentions at the end of her article, and indeed the Beth Din as referred to by some of the comments below her article.

Separate religious law is something completely inconsistent with the separation of church and state equality before the law. The Beth Din, however – and any Sharia equivalent – is not an example of separate religious law, and this is a common and serious misunderstanding. The Beth Din is not set up or funded by the British state, and its rulings, to the extent they are inconsistent with British law, are of no legal effect. It is in fact an illustration of the English law principle of freedom of contract. Any contract – including one providing for arbitration or other form of alternative dispute resolution – will be enforced by the courts so long as it meets domestic law requirements for a valid contract, including public policy. Thus if two people conclude a contract providing for Jewish law, or some foreign law, or even a previously unheard of set of rules the parties had devised themselves, the courts will do their best to interpret and uphold that contract. To do so involves no importation of the foreign or religious laws; it is simply applying the domestic principle of freedom of contract. So too with the recognition of foreign marriages.

One important caveat remains, however: if a religious system involves principles which would be unlawful here, such as discrimination against women, then the courts will be careful before deciding that the party discriminated against would have freely agreed to subject their dispute to the religious court, and indeed whether to recognise the ruling either way, having regard to public policy. That might be viewed by some as unfair discrimination against the religious group. By others it might be seen as protecting the rights of those discriminated against by that religious group.

The boundaries of recognising controversial or even unlawful practices in the name of freedom of religion, freedom of expression and freedom of contract forms one of the central disputes in liberal philosophy. For rather different reasons, and with rather different solutions, I would agree with Ms Hirsch that this debate isn’t going to go away or become any less heated any time soon.

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