R (on the application of Hodkin) v Church of Scientology: religion, religous premises and the law once more

UPDATE: The Supreme Court has given permission to appeal in this decision.  The hearing will take place on 18 July 2013.

Readers of this blog will know that I have long advocated a separation of church and state. Broadly speaking, there are three main justifications. First, the state should be neutral as between competing world views. There is no way of deciding which religion if any is the correct one, and therefore the state should not even try.

Secondly, everyone is entitled to their own beliefs or lack of beliefs. Accordingly, the fact that one chooses to follow a particular religion or no religion should not be a ground for discrimination against oneself – be it positive or negative discrimination.

Thirdly, everyone is entitled to respect for the right to hold their beliefs – but not to those beliefs themselves. Therefore, I can claim that my beliefs (spiritual, religious, whatever) require me to lead lifestyle x, but I have no claim on the state to fund that lifestyle, rendering it hard cheese if I cannot afford it.

Sadly, at present the United Kingdom does not have a separation of church and state, and therefore regularly infringes all of those principles. A good recent example is the case of R (on the application of Lousia Hodkin) v Registrar General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin).

The facts

The claimant was a Scientologist who wished to marry her fiancé, another Scientologist, at a chapel of the Church of Scientology in London. The chapel was not registered under s 2 of the Places of Worship Registration Act 1855 as a “place of meeting for religious worship”. Accordingly it was not a registered building under s 26 of the Marriage Act 1949. Unless it could be registered under s 2 of the earlier Act, no application could be made under the later Act and the marriage would have to take place elsewhere.

The defendant registrar held that she was bound to find that a scientology chapel was not a “place of meeting for religious worship” within the meaning of the 1855 Act, following the decision of the Court of Appeal in R v Registrar General ex p Segerdal [1970] 2 QB 697 (Segerdal).

The claim

The claimant applied for judicial review. Of course the decision in Segerdal was, on its face, also binding on the High Court. She argued that the court was nevertheless entitled to depart from the earlier decision, because Scientology’s beliefs and services had evolved since 1970 to the extent that the reasoning of the Court of Appeal in Segerdal was no longer applicable. She adduced much evidence about Scientology’s practices and beliefs in support.

The decision

The claim failed on two bases. First, whether or not Scientology was a “religion” (something left open though doubted in Segerdal), its services did not involve “acts of worship”. The judge found it “difficult to see [Scientology] as a theistic religion”. He found that there had been no significant change in the beliefs of Scientologists and their services since 1970 and therefore it was not open to him or the registrar to depart from Segerdal.

Comment

Not for the first time, the High Court has had to undertake an exercise to which it is manifestly unsuited and which no-one on any side of the equation would wish it to undertake. The UK Human Rights Blog has a good post summarising the decision here. I have added in the comments section the point that there is something inherently wrong with judges having to sift through evidence and decide whether something is or is not a “religion” and I cannot imagine either religious or secular people being happy with it.

Ouseley J referred to the decision of the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 which had to decide whether or not Scientology was a religion for payroll tax purposes. The House of Lords had to do something similar with the Mormon Church in Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] 4 All ER 640, where the issue was whether or not a temple was “a place of public worship” and therefore exempt from commercial rates under the Local Government Finance Act 1988.

The tax cases can be dealt with shortly. The rule of law is hopelessly compromised in the United Kingdom by the endless series of tax exemptions, and exemptions to exemptions, that have all kinds of negative consequences. These include (but are not limited to) opportunities for loopholes for the wealthy (who are the only ones able to afford the advice to exploit them); a drain on the public finances caused by the avoided tax and the endless litigation about who or what falls within a particular class; and manifestly unfair results since some intended exemptions will fail on a technicality but unintended claims for exemptions will succeed. I wrote about this in chapter 28 of my book.

Those are all points of general application, but there is no need even to reach that far when it comes to religious organisations and their premises. If a religion is doing charitable work then it is the charitable aspect, not the religious aspect, which should qualify for tax exemption. The overarching principle is the third stated above: everyone is entitled to their own beliefs, but they are not entitled to be able to avoid taxes or otherwise ask anyone else to fund those beliefs.

The same overarching principles apply in the case of marriage. The state should not be regulating religious marriage. Instead my proposed solution, as I have written about before, is for the state to run marriages along French lines. It should set out a list of criteria (age, competence and so on) and a prescribed fee. Anyone meeting those criteria could then apply and be granted a legal marriage certificate. No ceremony would be involved; it would be along the lines of a driving licence. Then everyone would be free to have any ceremony they wanted on any premises that would have them. No religious person would consider the state’s certificate to be anything other than a formality: instead, they would consider the blessing of their church to be the only point of significance. This would free religious groups to do as they wished since they would only be performing private activities according to private contracts. Anti-discrimination laws would never enter the equation for religious groups since the laws would only apply to the state issuing its marriage certificates, not any subsequent private ceremony.

Such a solution, it seems to me, would answer any religiously-based objection to gay marriage, as well as ending the sort of dispute brought by Miss Hodkin. Instead of the courts poring over arcane texts to try and decide whether they constitute a “religion”, Miss Hodkin and her fiancé would be able to obtain a certificate from the state and then hold, just like everyone else, a “marriage ceremony” in the building of their choosing.

Parker's Pen

Latest letter in the Times (17 December 2012): 

Dear Sir,


Tony Phillips (letter, 14 December) decries the influence of Robert Parker on the fortunes of wine makers, pointing out that he only provides the opinion of one man (it is in fact often two, since Parker's former assistant, Pierre-Antoine Rovani, has written a number of important entries in Parker's guide books).

Ironically, Parker himself downplays the rise of "Parkerization" amongst vineyards trying to create wine to suit him as opposed to anyone else. In terms of tasting he stresses that "there can never be any substitute for your own palate nor any better education than tasting the wine yourself".

As one who is happy to do so Parkerization suits me well: having found my tastes differ from his, I find a lot of excellent wine is much cheaper than it might otherwise be.

 

Crank calls and causation: the Australian DJ debacle

Headlines continue to be generated about the death of the nurse at the hospital where the Duchess of Cambridge stayed recently.  Inevitably, some have suggested legal sanctions should be imposed upon  the radio station responsible and some have even gone as far as to call for criminal proceedings.  As regrettable and in poor taste as the whole episode might have been, calls for the law to be involved are misplaced.

To recap the facts shortly, the two DJs phoned the hospital and posed as members of the Royal family.  They asked for information on the Duchess and were put through by the nurse on switchboard to the ward, where they were given a short rundown on her progress.  They broadcast the details on their show which was quickly replayed around the world and advertised on their twitter account. 

The DJs were stunned that they managed to get as far as they did, mostly because by their own admission their accents were a hopeless imitation.  Perhaps this was because the woman who answered the call initially was not actually British or Australian, but rather had been raised in India. She would therefore have been less able to spot imitation accents and perhaps was also not so well versed on a rather lame form of Anglo-Saxon humour.  

Pausing there, my first observation is that the hospital was at fault for not having some protocol in place to protect their high profile patients. 

Secondly, and contrary to some Australian media reaction I read soon after the event, no objection to the call was based on anyone being precious about the Royal family as such.  Anyone who has lived in Britain for any length of time would know that ribbing Royals is a long tradition in this country.  They are sent up, scorned and sometimes outright abused in any number of newspapers and other publications here on a regular basis. 

Rather, the objection was that a patient's private medical information was broadcast without the patient's consent.  The objection would have been identical whomever it concerned.  The fact that the information was fairly bland is not the point.  For that reason, the DJs' actions were unethical.  In Britain the Duchess might have had an actionable case based on the tort of breach of privacy, had she been bothered to sue (which I suspect is unlikely).  As I have written on many occasions, however, in the internet age the right to privacy is at the mercy of any international audience which obtains the information - Australia is, needless to say, not within the jurisdiction of the British courts, though information broadcast there can easily be obtained here. 

The whole event would have swiftly disappeared from the headlines but for the tragic outcome of the nurse committing suicide in the aftermath.  Here the concept of causation comes into play.  It may be true that the suicide followed the actions of the DJs and would not have happened without them.  But that does not make them responsible.  It would have to be a reasonably foreseeable consequence of their actions - and the simple fact is that it was not reasonably foreseeable.  It was a wholly exceptional result.  There is always a natural urge to blame someone when a tragic event occurs.  But sometimes blame cannot be found - or certainly not found in sufficient measure from criminal liability to follow. And that is indisputably the case here.  

Vance v Judas Priest, or (Not) Breaking the Law

Published in the New Law Journal, Vol 161, 15 July 2011, p 994 and in my book Cases, Causes and Controversies: fifty tales from the law. I reproduce the piece by way of tribute to World Heavy Metal Day (today, according to Radio 2)

Much of my youth was mis-spent listening to heavy metal bands from the 1970s and 80s. Since then I have found it amusing watching the genre go from being called a prime factor behind the decline of Western Civilisation to its saviour.

The redemption has come from a realisation that the bands, or the better ones at least, were actually proper musicians who played according to traditional methods, as opposed to manufactured pop or the sort of unmusical noise which finds favour amongst my teenage neighbours. And yet it was once a common contention that all the imagery around swords, sorcery, devils and the undead one finds throughout the metal canon constituted unmitigated evil, or at the very least was not suitable for children.

In 1990 that argument reached its zenith – or nadir – when the veteran British band Judas Priest were sued in the United States by the parents of one James Vance. The action followed an attempted double suicide by Vance and his friend Raymond Belknap. Belknap died but Vance survived with serious injuries (though he died three years later). Both had consumed marijuana and alcohol immediately prior to the incident, and had generally led troubled lives for many years. Despite that history Vance’s parents formed the view that the suicide attempt had resulted from the pair listening to the Priest album Stained Class. They issued proceedings against the band seeking damages accordingly.

The first hurdle that the plaintiffs faced was the robust protection of freedom of expression provided in the US by the First Amendment to the Constitution. The strategy they adopted was to argue that there had been “subliminal messages” on the album, which should not qualify for First Amendment protection because the recipient would be unaware of them: there would be no exchange of information or other functioning of the marketplace of ideas, nor expression of personal autonomy, nor any of the other principles of free speech as understood in American jurisprudence. At a preliminary hearing, that argument was accepted - not without some controversy - and the case proceeded to trial.

The plaintiffs’ burden remained formidable nevertheless. They had to establish that the band had deliberately placed a message on the record, which was inaudible (but still identifiable) and thus “subliminal”, and that the message had a direct, causative link to the suicide attempts.

The band members, who can be forgiven for not taking the writ entirely seriously initially, attended trial in a solemn manner, with their usual S&M-looking garb replaced by sober suits, offset slightly by the expansive hairstyles common to all metal bands of the time. They denied that any subliminal messages had been placed on the album. It was pointed out that any number of apparent phrases could be “heard” by playing the record – or any other record – backwards, and that most such “phrases” were as innocent as they were nonsensical.

The particular message alleged to be present by the plaintiffs was “do it”, which immediately raised the unanswered question “do what?” The band remarked that if they had been going to insert any such message, it would have been along the lines of “buy seven copies of this album” and not a commercially-detrimental injunction for fans to kill themselves.

The judge ultimately held that the claim failed due to lack of causation: the tragic actions of Vance and Belknap could compellingly be ascribed to other factors.

Justice was therefore done, although the judge’s prior holdings remain disquieting. They include the statement “the ‘Do It’s’ on the record were subliminal because they were only discernible after their location had been identified and after the sounds were isolated and amplified”. But, as one of the defence witnesses subsequently wrote (Dr T. Moore, “Scientific Consensus and Expert Testimony: Lessons from the Judas Priest Trial”, The Skeptical Inquirer, Vol 20.6, Nov/Dec 1996), something not consciously discernible is not necessarily unconsciously discernible either.

Dr Moore also pointed out that there is “no evidence whatsoever that subliminal directives can compel compliance”.

By allowing the case to proceed to trial, rather than dismissing it summarily, the judge allowed the junk science on which the plaintiffs’ assertions were based to gain the veneer of plausibility, or at the least the oxygen of publicity. The proceedings also left the band incurring significant and unrecoverable legal costs.

The plaintiffs’ lawyers were just as much to blame for advising their clients to bring an absurd case. They may as well have fashioned an ecclesiastical action on an image of Christ seen on a piece of chapati bread.

Predictably the publicity had some effect. Fellow British metal legend Ozzy Osborne also found himself sued in America over his record Suicide Solution, but the case failed because there were no detectable subliminal messages and the overt exhortations in the lyrics qualified for First Amendment protection.

Attention was granted to the INXS song Suicide Blonde, but the tune was exculpated because it referred to hair colour - somewhat ironic in view of Michael Hutchence’s subsequent death. Presumably however radio stations stopped playing the Billie Holiday classic Gloomy Sunday or the theme to M*A*S*H (Suicide is Painless) around the same time.

With original recordings now almost exclusively in the digital format one hopes we might now be spared “analysis” of supposedly hidden messages in tape distortion, feedback or “white noise”. But I suppose that would be to underestimate the human imagination ...

Cases, Causes and Controversies: fifty tales from the law

My book has now been published.  It can be found in Wildy's bookshops in Lincoln's Inn Archway and Fleet St, or on their website here.

Alternatively it can be ordered from Amazon here.

The blurb is as follows:

What do Prince Charles, Bette Davis, Sir Ian Botham, Mrs Victoria Gillick and a man whose family grave appeared in the background of a splatter horror film have in common?


Each of them felt they had been wronged in some way, and each went to court to try and do something about it. Sometimes their case was a purely private argument. Others brought cases of national importance, or claims which raised acute moral and ethical principles. Some won handsomely, while others lost so badly that they ended up far worse than when they started.

This new book looks at fifty legal disputes from Victorian times to the present day, where a compelling moral or legal issue was at stake, or where the background to the case was interesting, amusing or infuriating.

It begins with three Victorian murders, including the law student favourite of R v Dudley and Stephens, the case of shipwrecked sailors eating the cabin boy and later facing trial for his murder.

It then covers cases ranging from the early days of Hollywood and both world wars, through to modern day battles over superinjunctions, MPs’ expenses, the vexed relationship between religion and law, and the sometimes hazy relationship of law and sport.

Some of the stories border on the absurd. Why did the legendarily tough international sportsmen Ian Botham and Allan Lamb show no fear in the face of hostile fast bowling on the pitch, yet go to their lawyers when their old opponent Imran Khan said something they didn’t like in a newspaper?

Irony runs through many of the cases. Bette Davis was left penniless after losing her case in England and felt she had no option but to return to America and resume working for the studio she had unsuccessfully sued. But after doing so she became one of the richest and most and acclaimed actresses in history. In other cases the irony is less happy: the indigenous rights campaigner Eddie Mabo won a great victory for his people, but was shunned by them during his lifetime and never lived to see his final legal victory.

Then there are the outright tragic: the execution of the civilian Charles Fryatt by the Germans during the Great War, for example, shocked not only his own side but neutral observers of the day as well. In modern times, the blameless good citizens Dianne Pretty and Debbie Purdie were stricken with terminal illnesses and were forced to seek legal approval for their desire to end their lives at a time of their own choosing.

Written in a clear, accessible style, free of legal technicalities, the book will be of interest not simply to lawyers but to anyone interested in stories of great human interest and how the legal system tried to deal with them

The Leveson inquiry - the press, the politicians, Parliament, the police and the public

Free speech, in case anyone needed reminding, is one of the cornerstones of our democracy. So it is not just the media who should be interested in the Leveson report and its aftermath. There is no guarantee that the report’s recommendations will find their way into law, but either way they deserve close scrutiny. The Prime Minister has already indicated he does not accept all of the recommendations, and as is well known could not even agree with the deputy Prime Minister enough to make a joint statement, so we can expect to hear a good deal more in the coming months on the relationship between the press, the politicians, Parliament, the police and the public.

One general question concerns the appropriate composition of this sort of inquiry. Here the inquiry was conducted by a single judge. The report explains that it was hoped that the inquiry would proceed on judicial lines, involving the calling of witnesses and the adducing of evidence, followed by factual findings and conclusions. Certainly a judge or senior barrister would be the obvious choice in those circumstances, but the recommendations and conclusions are not at all confined – nor was it ever expected they would be – to forensic findings. It was not simply a matter of which politician and which policeman had done what with which journalist. The ongoing regulation of the press and others cannot be syllogistically extracted from a set of factual findings about what they have done in the past. Rather, we are into the realm of principle in determining proper limits of free speech, and also the realm of pragmatism in how those limits might be best enforced.

For that reason, for all his undoubted experience of the media reporting litigation over the years, Lord Justice Leveson would, I venture to suggest, have been assisted by others along the lines of a Fleet St grandee and perhaps some retired police and politicians. If it was too difficult to find someone with expertise who was fully independent of any remaining interests in this country, then perhaps assistance could have been found from elsewhere in the Commonwealth.

By way of comparison, in my book I criticise the Chilcott inquiry into the Iraq war for having no lawyers at all and thus no-one experienced in cross-examination. Appropriately there was military expertise on that inquiry but the conduct – and cross-examination of witnesses – would have been enhanced by counsel being added as well. In other words, a better composition could have been found with both Chilcott and Leveson.

Another prior question regarding the Leveson report is whether there was a need for an inquiry at all. The casus belli was the apparent hacking of the mobile phone of the murdered teenager Milly Dowler, but the story turned out not to have been true. Leveson states in forthright fashion that an inquiry was still justified because of ongoing concern about the place of the press. But it does not follow from bad behaviour of the press with other parties that it is the former and not the latter who should be regulated in future.

For example, where the press have been shown to have entered into inappropriate relations with the police, then the answer is tighter controls of police. A police officer leaking information about an inquiry is (potentially) committing a criminal offence. Indeed, the journalist might too if he or she acted in a way that prejudiced a trial. There might also be a civil remedy arising from breaches of the right to privacy, having regard to Art 8 of the European Convention on Human Rights.

The same applies with politicians and civil servants: if they are too close to journalists, or are found leaking information improperly, then they may breach codes of conduct for their respective roles or, again, face both civil and criminal proceedings depending on the circumstances.

In other words, the answer to many of the questions posed by Leveson may well be better enforcement of the existing law, not new laws or new enforcement mechanisms.

The most controversial suggestion in Leveson comes from his suggestion of a statutorily-underpinned but still “independent” regulator. Some reaction has been frankly naïf: one blog suggested the only statute should be an almost verbatim reproduction of the US First Amendment. This is absurd for the simple and trite reason that short of complete anarchy there will always be restrictions on free speech.

That does not mean, however, that a statutory regulator – a stronger restriction in theory than ad hoc laws protecting such things as privacy, state secrets and intellectual property – is necessary or desirable. An independent regulator “underpinned” by statute looks like a statutory regulator at one remove, if not a statutory regulator by any other name.

Leveson conceded that much of the wrongdoing with which he was concerned was already unlawful or, in some cases, illegal, but then suggested an arbitration process which parties would be compelled to follow on pain of not receiving costs in the High Court even if they won. The justification for such a process is the usual objection to litigation of it being too slow and too expensive for the general public. But that applies to all litigation, and it is not clear at all why some form of exemption should be carved out in one area of law and not others.

Secondly, arbitration proceedings are usually confidential, because they constitute a process chosen by parties to a commercial contract as part of their private bargain. The resolution of any disputes arising out of those private affairs is (generally speaking) no-one else’s business. With the press printing stories about individuals without the latter’s consent, any resultant dispute is not part of a consensual bargain. Moreover, there may be a public interest in the proceedings and their outcome which is not present in commercial bargains, so the justification for confidentiality will be much weaker.

Further, commercial arbitration in London is done under the purview of a long-established system of commercial law. By contrast, the law of privacy and the press is in a state of flux. Arbitration proceedings have no precedent value and so will not develop the law at all.

The final point is the elephant that was in the room throughout the Leveson inquiry, in the form of the internet. As I have written before (see Cases, Causes & Controversies: fifty tales from the law (Wildy, Simmons & Hill, 2012), p 151):

… the reality is that since the law (for present purposes) has no reach beyond these shores, it has become – for better or for worse – very much harder indeed to suppress information than ever before. Someone outside the jurisdiction might publish something on the internet that would then be easily accessible to British citizens. It would still be an offence for a British citizen to download and disseminate the information, but readers will need no elaboration of the reality of such a situation.

The only recourse for the government in those circumstances would be to try and censor internet search engines, in the manner of a few largely non-admirable totalitarian regimes elsewhere. I trust such a step is not likely to occur in this country ...

Only today we have seen what modern communications enable overseas media to do, and there is nothing whatsoever that any British statutory body could do about it ..

Foster care, race and politics

According to the press, a foster couple in Rotherham have had their children removed by the local authority on the ground that they were members of UKIP.

A year and a half ago I wrote about foster carers who had been in the headlines because the local authority apparently did not approve of their views on homosexuality.  My conclusion was:

There are many aspects of prospective foster parents that ought to be properly investigated - their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, previous involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be towards the top of that list.

The same conclusion applies in this case, and therefore the local authority was in the wrong.

Meanwhile Macclesfield Magistrates' Court have apparently convicted a woman of a racially aggravated public order offence on the ground that she called her neighbour a "stupid fat Australian" when the neighbour was in fact a New Zealander. 

As a New Zealander myself this made me raise my eyebrows.  In common with most other Kiwis I would be quite wealthy if I had a pound for every time I have been mistaken for an Australian.  It is always a source of amusement more than anything.  Sometimes the person who has made the mistake is embarrassed, though relieved when I point out it does not bother me one way or the other (why should it? I am sure I have mistaken the odd Canadian for American or vice versa.  All it shows is ignorance on the part of the person who makes the mistake - not an insult against the other person).

More to the point, I do not see how "New Zealand" can refer to race.  Since the beginning of European settlement there New Zealand has always been at least a bicultural country, and demographics nowadays show it to be quite mixed ethnically. Thus the fact that one was born and raised there and has the accent to prove it says nothing about one's race.  I would instead describe "New Zealand" in that context as a culture, though you could make a case that as a multicultural country there are far fewer shared cultural assumptions amongst Kiwis than there might have been twenty or more years ago.

The underlying problem is the provision in public order offences of religious and racial insults as aggravating forms of harassment.  This is well meaning, but in practice likely to be very problematic, as we have seen with religious cases in the past.  Better I would have thought to have a general offence concerning harassment, and to consider all aggravating and mitigating factors as part of the sentencing exercise.

Employment once more: Smith v Trafford Housing Trust

Recently I wrote about an employee dismissed because he joined the British National Party. I argued that someone’s political views ought not to be a ground for dismissal or discipline unless they were somehow relevant to the job. Because the claimant in that case had an exemplary work record, his political affiliation plainly had not affected his work and accordingly he should not have been dismissed – whatever anyone thinks of the BNP. The case of Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) provides another, stronger example of the same principle.


Mr Smith was employed as a housing manager by the defendant, a private housing trust. In February 2011 he placed a link on his Facebook page to a BBC news article about gay marriages in church, and added the comment “an equality too far”. On the same day one of his Facebook friends responded with the comment “Does this mean you don’t approve”, to which he responded:

“no not really, I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose it’s (sic) rules on places of faith and conscience.”

For making his two comments Mr Smith was suspended from work on full pay, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing in March 2011, at which he was told he was guilty of gross misconduct justifying his dismissal. Because of his service record, however, he was instead demoted to a non-managerial position, with a consequential 40% pay reduction, phased over 12 months. His subsequent appeal was effectively dismissed, though with an extension of the phasing-in of the salary reduction from one to two years. He issued proceedings contending that the defendant had breached his contract by the demotion and pay reduction.

He contended that he had not been guilty of gross, or any, misconduct in posting the Facebook comments.

The defendant maintained that he had committed breaches of its code of conduct for employees, and acted contrary to its equal opportunities policy.

The judge held that a reasonable reader of Facebook wall page could not rationally conclude that Mr Smith’s two postings about gay marriage in church had been made in any relevant sense on the defendant’s behalf. The brief mention on his Facebook page of the identity of his employer was in no way inconsistent with the general impression to be gained from his Facebook wall – namely, that it was a medium for personal or social, rather than work related, information and views.

That was not to say that Facebook could never be used as a medium for work related communications, but clearly Mr Smith had not been using it in that fashion. Any reader would be left in no doubt that he regarded his employment merely as a fact – and not a particularly interesting fact – about himself. Nor were his postings about gay marriage in church themselves work related.

Those findings constituted robust common sense. Apart from anything else, putting the case at its highest in the defendant’s favour – that is to say, assuming that the comments could in some way be linked to Mr Smith’s employment – I still do not see how the defendant could have been justified in demoting him. As the judge said, his posts were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. They were widely held views frequently to be heard on radio and television, or read in the newspapers. He had been mainly responding to an enquiry as to his views, and doing so in moderate language.

Mr Smith’s claim therefore succeeded. Unfortunately the correct measure of damages was the very small difference between Mr Smith’s contractual salary, and the amount actually paid to him during the 12 weeks following his assumption of his new, but reduced, role. That was a modest sum indeed and rendered his victory somewhat pyrrhic. The judge expressed “real disquiet” about that fact – Mr Smith, he reiterated, had been taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary. The breach of contract which the defendant thereby committed was serious and repudiatory. It was accordingly very lucky indeed to get off so lightly in financial terms.

I suspect that the defendant was acting out of the laudable motive to be seen to be an equal opportunities employer, and not to be seen to endorse any views discriminatory towards any potential customers. These are understandable aims, but do not justify the sort of action that was taken against Mr Smith. The defendant’s policies do not need to be enforced by some form of thought police. If Mr Smith held some views which he only ever expressed in his personal capacity, that was his business, unless perhaps they were so objectionable and offensive and directed at potential customers. But Mr Smith’s views were nothing of the sort. One feels that a disturbing climate is generated by these sorts of cases, in which all employees are expected to be on message politically – something ironically inimical to the notion of a diverse, tolerant society, which has to tolerate dissent and a wide range of views, even those counter to the zeitgeist.

The overarching principle for cases such as Mr Smith’s is that mentioned at the beginning: employees should only be hired or fired, promoted or demoted, according to actions relevant to their job. If they express views in private that have no bearing on their performance at work and in no way related to their employer, it is hard to see why they should be sanctioned by the employer, even if the views are ones which the employer does not share.

J'Accuse - the Dreyfus affair then and now

I have been published in this week's New Law Journal, vol 162, 16 November 2012, p 1434 (£), on the Dreyfus affair.

Petrodel and others v Prest and others: "That must now cease"

Family lawyers and company lawyers alike will be anxious to see what the Supreme Court makes of Petrodel and others v Prest and others [2012] EWCA Civ 1395. The former may see the decision of the Court of Appeal as a gross and unwanted interference with well-established principle and authority. The latter may see it as an obvious correction of an obvious and thoroughly unwarranted legal aberration.

The case was one of the “big money” divorce proceedings that the press have often picked up on in recent years. At first instance, the judge ordered the husband to transfer £17.5m from company assets to the wife on the basis that he was unlikely to transfer assets from his personal resources (see [2011] EWHC 2956 (Fam)). To reach that decision he had to “pierce the corporate veil” and find that the assets of the company were effectively those of the husband. In determining whether it was appropriate to do so he followed a long line of family law cases centred on the concept of fairness and a consequent desire not to allow a spouse to hide assets in a corporate structure.

On appeal Thorpe LJ, a highly experienced family lawyer, upheld the judge’s decision. But he was outnumbered by the other two judges – Rimer and Patten LJJ – both of whom are veterans of the Chancery Division. In the starkest of contrasts they carefully trawled through the long list of authority relied upon by the judge below and endorsed by Thorpe LJ – and demolished the cases one by one.

Rimer LJ gave the main judgment. He said the family authorities were “internally inconsistent, contrary to principle and wrong”, and that the normal rules about company assets applied. The company could not use its assets to satisfy the personal debts of the shareholders any more than the shareholders’ personal assets could be sought by the company’s creditors – as , of course, all company lawyers have known since the seminal Salomon v A Salomon and Company Ltd [1897] AC 22.

Patten LJ said the same thing in a few short paragraphs given in emphatic agreement with and endorsement of Rimer LJ’s judgment:

What needs to be emphasised is that the provisions of s.24(1)(a) of the Matrimonial Causes Act 1973 do not give the court power to disapply the established principles of legal and beneficial ownership or of company law. On the contrary, those principles were plainly intended to define the limits of the court's jurisdiction under the statute and Moylan J was wrong to give the words "entitled, either in possession or reversion" any wider meaning. Married couples who choose to vest assets beneficially in a company for what the judge described as conventional reasons including wealth protection and the avoidance of tax cannot ignore the legal consequences of their actions in less happy times.

I wish particularly to support Rimer LJ's criticism of the dicta in Nicholas and his view that these cannot be relied upon as a correct statement of the law following the decision of this court in Adams v. Cape Industries plc. They have led judges of the Family Division to adopt and develop an approach to company owned assets in ancillary relief applications which amounts almost to a separate system of legal rules unaffected by the relevant principles of English property and company law. That must now cease.

It rather reminds one of the story of the provincial solicitors informing the London solicitors on the other side of a transaction in the early 1930s that the Law of Property Act didn’t apply in their part of the world.

It is not difficult to see the competing points of view. For family lawyers a fair outcome to matrimonial property disputes is the overriding consideration, and if one party is a sophisticated businessperson the use of a company structure may be an obvious way of hiding assets. Both the desire to protect the more vulnerable and the need for a fair outcome in all cases point to the need for flexibility for the court. In turn that means the court will need to be able to look at the substance of a corporate structure rather than its form. Geraldine Morris has a detailed analysis on Halsbury’s Law Exchange from the family lawyer’s point of view.

By contrast, commercial law requires certainty and the last thing that businesspeople are interested in is some sort of assurance that, if things go wrong, their money will be divvied out according to what a judge thinks fair after the time and delay of complex litigation. Instead parties to a commercial transaction will wish to set down in the clearest possible terms who owns what from the outset and who will be entitle to what should the venture fail. One only has to look at how the English Commercial Court became the most respected and sought-after judicial tribunal of its type in Europe after the war. It has usually applied the Salomon principle, looked to the parties’ intention when construing a contract, and followed the precedent system so that contractual wording in one case would be interpreted the same way in the next. As a result Continental courts, with their willingness to imply all manner of terms or overlook the express wording of contracts in pursuit of fairness, saw almost all international business head to London.

I have to say I instinctively side more with the company lawyers on this one, partly because as Patten LJ said one cannot have one set of law applying to one set of proceedings, but also because it does not necessary preclude an unfair outcome. For a start courts could order transfer of shares from one spouse to the other, which would not offend Salomon, although it might not be as tidy a solution by any means. But it is not a straightforward issue by any means.

No doubt the Supreme Court will have to deal with it sooner rather than later, and it will be interesting to speculate where their sympathies will lie. Somewhat atypically the present court contains two family lawyers, Lady Hale and Lord Wilson, but even if both are chosen to hear an appeal raising the point they are likely to be outnumbered by Chancery and Commercial judges, who still comprise the majority of the court as they usually have done. The new President of the Supreme Court, Lord Neuberger, is a former Chancery judge too of course …

The BNP and Strasbourg: Redfearn v United Kingdom

There was irony aplenty this week as a BNP member, whose party considers the Convention on Human Rights to be a means by which Britain may be exploited by "the world's scroungers" and promises its immediate abolition, won a case in Strasbourg.  The case is Redfearn v United Kingdom (App. No. 47335/06).  

A good summary and analysis appears on the UK Human Rights Blog by Martin Downs here.

Mr Redfearn was a bus driver.  He was employed by a private company, Serco Ltd (Serco), which in turn supplied his services to a local authority.  There were no complaints about the standard of his work for Serco Ltd and in fact his supervisor, who was of Asian origin, had nominated him for the award of "first class employee".

Redfearn's political affiliation became public when he was elected as a BNP councillor.  A number of complaints were received from unions and employees, following which he was dismissed.  The grounds given for dismissal were that he would present a risk to the health and safety of his co-workers and passengers and jeopardise the reputation of his employer.  These were all based on his BNP membership.

Mr Redfearn challenged his dismissal without success in the domestic courts but, as mentioned, has just succeeded in Europe.  It needs to be emphasised that he has only won a preliminary victory.  He wished to argue that he had been unfairly dismissed on account of his political beliefis or affiliations.  He was precluded from doing so by the requirement of domestic law that required a year's service before such complaints could be made.  That one year qualifying period did not, however, apply to grounds of pregnancy, race, sex or religion.  The majority of the Strasbourg court found that that exception needed to be reconsidered and expanded to include political opinion or affiliation, or a free standing cause of action to the same effect.

Here is a classic example of why exceptions from a general rule  - in other words, breaches of the rule of law - are a minefield.  The one year rule was thought by Parliament to be necessary to encourage employers to take on more staff.  Then it was thought that some forms of ill treatment, such as discrimination, were so serious that an exception should be made to the general rule.  Now, almost inevitably, more exceptions are found necessary, after expensive litigation, leaving the open question of whether still more might be found in the future or else deserving claimants will be left without a remedy.  Employers will not be happy either and will be more cautious about hiring new staff as a result. 

Another side issue concerns the application of the Convention to a private employment contract, and whether Serco was in fact equivalent to an arm of the state because it was supplying services for the local authority.  I will however leave that aside to keep the post within manageable length.

Let us return therefore to the substantive dispute. Without belittling the skill and responsibility involved, if Mr Redfearn's job was simply to drive a bus it is hard to see how his political affiliations (or religious beliefs, or philosophical views) would have been relevant. They might have been if he had chosen to display them by symbols, or logos, or if he had been covered in aggressive or offensive tattoos; or if he had decided to treat his passengers differently according to their race or gender or appearance. 

One of the key principles behind anti-discrimination laws - ironically the very type the BNP generally opposes - is that people should not be subject to different treatment in employment for irrelevant reasons. Race, gender, political opinions and membership of a lawful political organisation are generally irrelevant to most jobs and certainly, one would have thought, driving a bus.

If the driver's performance was satisfactory, then membership of a legal organisation would not be grounds for dismissal but instead an exercise of the basic human right of freedom of association, even if it involved associating with a group that would, if given the chance, remove a few basic human rights.

Then there is the question, already raised in Redfearn's case, whether he could have been moved to a non-customer facing role.  If so, suppose Redfearn changed his mind and disowned the BNP: would he then be able to demand reinstatement to his previous role or at least reconsideration of his suitability elsewhere?  Would there be a test of his sincerity? If so, would that be amenable to review by the employment tribunal?

The BNP is a party whose doubtful reputation on human rights and indeed human decency needs no elaboration. Moreover, most of its policies, even leaving aside their objectionable nature, are no more than slogans anyway, unworthy of serious study or attention.  The party's performance at the ballot box has, thankfully, largely corresponded todate.  But here we have the classic liberal dilemma of tolerating intolerance.  The BNP has made clear it would like to expel anyone it doesn't like from the country, if it could get away with it.  By contrast, a more tolerant society than the one the BNP would like to foist upon us has to tolerate dissent.  It also has to tolerate even highly objectionable opinions, in the name of free speech, free association and freedom of religion. 

One only has to look at what happens to political undesirables in other countries to realise that toleration of minorities, and even what most people find very objectionable minority views, is a fundamental requirement for democracy and freedom.  Then there is the employment law perspective: people should only be promoted, demoted or fired for reasons connected with and relevant to their employment. In the case of a bus driver this does not include membership of a political party, unless as I have stressed the driver starts to treat his passengers differently or otherwise breaches his contract. 

Homosexuals should not be discriminated against in the provision of services offered to the public, even if it offends the sincerely held religious beliefs of others.  Nor should people be denied the ability to wear religious dress in public. Nor should people be sent to jail for writing offensive garbage on the internet. And people should not be dismissed from their job for holding political views (or indeed for any other reason) unless those views preclude them from doing their job properly, in which case it is their performance, not their views, which should be impugned.

More Taking Sides

I am continuing to read Bernard Levin's Taking Sides, and enjoying the window that it provides on Britain's recent past.  In 1973 Levin loses his cool with the Gas Board for making a hash of converting his elderly widowed mother's flat to gas.  He finds the details of the supervisor responsible and publishes them in the Times, exhorting the public to express their frustration for any similar experience directly.  I doubt he'd be allowed to get away with it now and I am rather surprised he got away with it then.  He finishes his first column on the subject with the following thunderbolt:

I want a public answer to this question: what is wrong with a national organization which gives its customers not the service they pay for but, instead, incompetence and a string of broken promises. 

It seems his column worked, for he follows it up with another dated two weeks later in which the problem has been solved and a letter of apology received by his mother.  But he despairs for anyone else:

Unless the Gas Board, feeling that it has done its final duty by the tribe of Levin, has now given up The Times, perhaps any senior official reading this might care to indicate to his colleagues that something in the nature of a return to square one is urgently needed. 

There are any number of problems with privatised utilities: price gouging if a monopoly; executives trying to ensure their bonuses keep pace with the rest of the City irrespective of their actual performance; different companies involved in the supply chain each seeking a profit and inflating the price for the end user accordingly; important national resources being placed beyond national control; and so on.  At the same time, reading Levin's book tends to confirm the suspicion that a return to 1970s Soviet-style state monopolies with Soviet levels of incompetence and inefficiency might not be the answer.

In the next article Levin returns to the law and his favourite pastime of attacking lawyers, in this case judges.  He records that one Mr Banks, "who is herewith invited to blow the froth off a pint of mine any time he finds it convenient to call" was arrested and charged with contempt for having given the fingers to a judge passing in official regalia on the way to Teesside Crown Court.  Apparently Mr Bangs made a mistake and had intended to do the fingers to the Mayor instead, as an expression of frustration over a recent rates increase.  For this misidentification he found himself in the dock.  Levin mercilessly taunts the judges for their Gilbert and Sullivan appearance and haughty pomposity.

I have to say I agree with Levin that prosecuting Mr Bangs did something to damage and nothing to uphold the majesty and dignity of the law.  Levin provides a contrasting example of an aggrieved litigant in person who threw books at the bench as they were retiring.  None of the judges batted an eyelid, leaving the litigant rather than them looking silly and feeling harassed.

As with most who have observed court over the years I could add many similar examples.  My favourite(it may be apocryphal) concerns the failed appellant in the Court of Appeal, Criminal Division, who screamed at the Lord Chief Justice "You f++ing bastard", before receiving the casual response: "Well I suppose the bastard point's debatable, but I'm certainly not f++ing anything at the moment ..."

Without drawing too long a bow, I might add that such sanguinity is something to bear in mind in the present day, where the law is busily tying itself in knots trying to apply s 127 of the Communications Act 2003 to the billion or so Facebook updates and Tweets daily.  It might be harsh telling someone to develop a thicker skin, but it is more harsh to jail someone for some random piece of nonsense published on social media.

Bernard Levin - Taking Sides

Recently I have been leafing through an old book for the first time in a number of years, Taking Sides by the late Bernard Levin. I have a fond personal memory of meeting Mr Levin in the mid-1990s, when he was on a speaking tour of New Zealand and I was a young law student. Aware of his reputation as a fearless liberal, I carefully prepared a submission in case there were audience questions.  I don't remember the wording but I recall pulling together some impressive-sounding (so I hoped) quotes on free speech from John Milton and Ronald Dworkin and relating them to some story then in the news.  I didn't get the chance to speak during the Q&A session as it turned out, but I did get to speak to Mr Levin afterwards.  I carefully presented my submission and felt a tinge of adrenaline at the thought that I might be about to lock horns with a famous intellectual.  Instead Mr Levin said "absoutely, I quite agree" and then added "of course, indeed" before moving on to the next person.  I must admit to feeling slightly deflated, though he wasn't dismissive or insincere in the way he spoke. 

In retrospect I might have had a better chance of exchanging views had I offered something with which Levin was likely to disagree, but he was a famous defender of free speech and so it wasn't surprising at all that he concurred. Perhaps therefore I should have taken a leaf from his book and adopted a deliberately contrarian position: Levin apparently accepted a job with the Times rather than the Guardian because he thought it more interesting as a columnist to go against the editorial grain (others have suggested the better pay also might have had something to do with it).

Levin is known as the father of the modern Parliamentary Sketch: prior to him, most were reverential and dull in equal measure. Levin on the other hand did not see himself as dutifully recording the learned discourse of his betters, but more as a theatre critic sitting in the front row of a farce.  I think he was also something of a blogger before his time: at his peak, he wrote short and succinct posts almost daily on all manner of subjects, and prompted more letters from readers than most blogs receive comments.  Like the very best bloggers today, Levin could be interesting whatever the subject. Despite the randomness of what he wrote about there were some recurrent themes, and a strong sense of values underpinned all his articles, even the apparently trivial.

Taking Sides makes fascinating reading. Levin is a writer of such genius that he can be inspiring and off-putting at the same time to anyone who writes for a hobby or for a living: the phenomenal craftsmanship of  his sentences is inspiring and intimidating in equal measure.

The book was first published at the end of the 1970s and is composed of a collection of articles written during that decade, when Levin was chief columnist for the Times. As such it gives quite an insight into an age when some things were very different and others very much the same.  His article on a teacher who seduced a pupil is very poigniant given the Savile affair and related accusations.  (It is also worthy of a separate blog post, which I hope to get around to shortly.) 

There is much dramatic irony in what modern readers know but Levin could not.  One essay, for example, is an impassioned argument against the death penalty, which many were calling for at the time because of the Birmingham IRA attack.  Levin's argument is not on the basis that the Birmingham Six were innocent but on the basis that they were indeed cold-blooded murderers, and his argument becomes crushingly powerful to a modern reader who knows that they were in fact innocent. 

Other essays fearlessly attack the inquities of Apartheid and the Soviet Union.  Both of course vanished less than twenty years after Levin was writing, but few imagined that at the time, especially in the case of the Soviet Union. I may also fashion some future blogs around these articles: with human rights rarely out of the headlines there are more than a few lessons to be learned from our recent past.

In other respects, it must be pointed out, Levin was in the wrong then and remains in the wrong now.  He defended Nixon long after Tricky Dicky had become indefensible.  His liberalism was a liberalism too far when it came to advocating Myra Hindley's release - not because no case could ever have been made, but Levin's own was uncharacteristically weak. And despite his brilliance as a writer some jokes don't work, and some go on too long, and sometimes his serious prose turns into not much more than a rant, in the process losing whatever point or points he set out to make. 

Enough criticism for now.  One of Levin's greatest strengths was taking on the establishment and any sacred cows of the day.  Lawyers were amongst his favourite targets, at least when they were at their self-important and pretentious worst (not on the other hand when they were in the form of Sir Sydney Kentridge fearlessly attacking the Apatheid authorities).  I will close this post with one of the "letters from the profession" which Levin explained had replaced his column on a particular day.  It was prompted by the-then Commissioner of the Metropolitan Police, Sir Rober Mark, who had had the temerity to suggest that some criminal lawyers were criminal in both senses of the word.  Levin's letters are from the likes of Sir Preposterous Attorney QC; Sir Grand Larceny QC and Mr Only Line-Pockets QC.  This one is from Sir Ratlike Countenance QC, of 961 Pump Court:

"Sir,

Once again it is necessary to explain to the public - this time because of Sir Robert Mark's scandalous and unjustified allegations - just how the legal profession works.  Sir Robert insinuates that we lawyers are willing to tell a pack of lies in court for money: but I can refute this charge - as ridiculous as it is false - quite conclusively.  Every lawyer is perfectly willing to tell the truth for money, or even to shut up entirely for money.  Indeed, some even prefer to, other things (the money, for instance) being equal." 

Zombies in the High Court

I have been published in this week's New Law Journal, on the suit against Peter Jackson over his Splatter Horror film "Brain Dead" (released in some countries as "Dead Alive".

Free speech in knots

This morning comes the news that Matthew Woods, jailed over offensive social media messages, has had his sentence reduced on appeal.  This does not change the fact that he should not have been charged in the first place, let alone convicted and sentenced to a term of imprisonment.

The problem, as others have identified, is that the Communications Act 2003 predates the invention of Facebook and Twitter.  It seems to have been developed to deal with telephone messages.  When added together there are over a billion Facebook updates and Tweets every day.  The legislation is therefore unworkable.

Meanwhile, lawyers are left trying to explain to the public why Mr Woods was jailed but Frankie Boyle was not even charged over his tweeted joke about Jimmy Savile going to heaven to have sex with Madeline McCann. In fact the law has been distinctly on Mr Boyle's side of late, with him recovering damages for libel because, he contended, a newspaper accused him of being racist.

I leave the last word to someone else on Twitter, who wrote: "If you're thinking of unfollowing Frankie Boyle because he made a distasteful remark, why were you following him in the first place?"

The Italian seismologists: prosecution by yearning

I have often maintained (without a claim to originality) that one can tell a great deal about any particular society by two things: first, the way in which it classifies people as criminals, and secondly, how it chooses to punish them. A good illustration comes with the recent news about six Italian scientists and a government official being imprisoned for failing to give adequate warning of an earthquake that killed more than 300 people in L'Aquila in 2009.


The news report states:

“The seven, all members of a body called the National Commission for the Forecast and Prevention of Major Risks, were accused of negligence and malpractice in evaluating the danger and keeping the central city informed of the risks.”

It is hard to know where to begin, assuming the report to be accurate. We need to look very carefully at any particular criminal offence to examine what it is supposed to achieve. Is it to ban something which is plainly a breach of someone else’s rights, however framed, such as assault or other crimes against the person? Is it to protect the environment or stop some other more general but clearly identifiable harm? Is it to do with public morality? Or is it simply trying to find a scapegoat to make everyone feel better; a type of “prosecution-by-yearning”?

One good example of the last kind was the arrest of the paparazzi who had been trying to photograph Princess Diana on the night of her death. The paparazzi then and now are often not very admirable people, but the fact that they were trying to take a photograph was not an excuse for Princess Diana’s chauffeur to drive recklessly – as indeed the French authorities conceded by releasing them without charge. More recently, one thinks of the threatening language employed by United States’ authorities against BP for an oil spill, although at least they were on more solid ground given that a clear link could be made between BP’s action and subsequent environmental damage.

I wonder if the prosecution of the scientists was motivated by similar populist concerns. Everyone should sympathise with those who suffered because of the earthquake. But it does not follow that someone was criminally liable. Simply put, the fact that someone does their job conscientiously but badly on one occasion is not normally sufficient to attract criminal liability – otherwise we would have a lot more criminals.

I doubt very much the scientists in question deliberately set out to mislead the public or the government (and if so would have opened themselves to a different sort of legal liability such as fraud, or censure by their professional body if they have one). Instead the reasoning seems to have been along the following rather crude lines: they were paid to study a phenomenon and warn of the known danger associated with it; they failed to do so; lives were lost as a result of the lack of warning; therefore the scientists should be imprisoned. (I repeat the caveat at the beginning that I am only going on the international news report.)

There are two immediate objections. First, applying the same reasoning, a host of others will have to be prosecuted too, as I inferred above. All of the economists and financial journalists paid to study the financial system would be good candidates for a start. As well as their lack of warning leading to catastrophic financial damage - far outweighing the usual costs of even severe earthquakes – a number of people have apparently been driven to suicide by financial ruin, which was also eminently foreseeable in the event of a major economic depression. Indeed, some figures I have read put the number of post-2008 financially related suicides higher even than the 300 lives which were tragically lost at L’Aquila.

Secondly, the consequences of punishing failure with the heavy and blunt weapon of the criminal law will have an obvious negative effect of putting people off becoming seismologists in the first place. I cannot imagine any talented young scientists in Italy will be lining up to study the subject at the moment. Far from improving warnings, therefore, the criminal prosecution may lead to no-one accepting a job involving making them at all. As for people who are already seismologists, either they will start crying wolf continuously (and perhaps by the same logic be prosecuted for criminal negligence for over-warning) or they will look for a change in career.

Again, this does not mean that there should be no consequences for properly negligent seismologists or other scientists. If it emerges that someone has been adding figures wrong or negligently failing to look at data, the professional repercussions would normally be sufficient to dissuade anyone else from similarly poor performance.

Something much more than mere failures to give warning should therefore be needed to justify criminal prosecutions of scientific experts for failing to give warnings of known phenomena. What, therefore, was special about this particular group of scientists and this particular instance of allegedly poor performance? If anything, I think the opposite was true and that the failure to foresee the earthquake was not necessarily poor performance at all. If there is one thing certain about seismology, it is that it is an uncertain science. The earthquakes in New Zealand and Japan in recent years, for example, occurred in known earthquake zones in first world countries, where well-paid specialists monitor the signs and study the risks on a daily basis, yet they failed to predict what occurred.

No-one in New Zealand, or Japan as far as I am aware, ever thought the experts should be made criminally liable as a result. Instead the lesson learned was that seismology is an imprecise subject and therefore any population in a high risk zone should spend time and money preparing for earthquakes – as indeed both New Zealand and Japan did, meaning that they suffered far fewer casualties and managed a far swifter recovery than, say, countries affected by the 2004 Tsunami managed.

The criminal justice system in this country comes in for regular rough treatment on behalf of the popular press. Here is a good example, however, of why we should be grateful for what we have, since an equivalent prosecution in this country would be hard to imagine.

Black and Morgan v Wilkinson: religious discrimination once more

In advance of the expected judgments of the Supreme Court and the European Court of Human Rights on the issue of sexual equality and religious freedom, the Slough County Court has had to have a go at the issue, in the case of Black and anor v Wilkinson. The judgment can be found here.

The facts
A gay couple asked for a room at a B&B and were refused.  They would have been offered separate rooms but none were available, and the owner objected to unmarried couples sharing a bed. The couple brought a claim for direct discrimination under the regime then in force, namely reg 4(1) of the Equality Act (Sexual Orientation) Regulations 2007 (since repealed by the Equality Act 2010).  That regulation made it unlawful for a person concerned with the provision of services to the public to discriminate against a person who sought to obtain those services on the ground of that person's sexual orientation by refusing to serve them.

The discrimination was not that the proprietor refused gay couples a room per se, but rather all unmarried couples.  It was therefore a question of indirect discrimination, since gay couples presently do not have the right to get married.  The couple involved in the case were not in a civil partnership either as it happens, and on that ground differed from those in the well-known case of Bull v Preddy, though it does not seem to be a material difference.  Incidentally there was evidence that on the odd occasion unmarried couples had been allowed to share a bed, though apparently only when the proprietor had not discovered that they were unmarried until after granting them the room.

A second issue concerned whether the B&B was really a business, or was so closely connected to the proprietor's home that it should be considered as part of the home and thus no-one else's concern.  That might be a grey area in some cases, although in the present case it seems tolerably clear that the defendants were indeed operating a business. But in order to keep this post to manageable length I will leave the point to another day.

Comment

On the face of it, the decision seems straightforward.  It is a generally accepted principle of equality that in offering services to the public, one may not discriminate on proscribed grounds.  Few would wish to see B&Bs once again able to display signs saying "no blacks or Irish", and President Obama was rightly applauded when he observed he now held the top job in a city in which many restaurants would have refused to serve his father within living memory.

A slightly differing view is found in this analysis on the UK Human Rights Blog by Alasdair Henderson.  There are some erudite and interesting comments in the discussion thread below as well. Mr Henderson states:

There does seem to be a good argument for a different approach to cases where religious belief clashes with discrimination law (as has been suggested previously on this blog). At present, the impression given by the courts is that Article 9 is about the least effective part of the European Convention. Although the protection of the holding of a belief under Article 9(1) is absolute, the protection of manifestations of belief under Article 9(2) is interpreted so narrowly as to have almost no impact at all in relation to whole swathes of public life.


(...)

Article 9 protects a poor form of religious freedom indeed, if it does not extend to either the workplace or the marketplace. The current approach is in danger of forcing millions of people to be hypocrites; able to act in line with their beliefs in their own homes or at the mosque/church/synagogue/temple, but having to put on a different face at work or in business. That is unacceptable and unworkable.

With this I respectfully disagree.  The link in Mr Henderson's article is to a previous blog by Aiden O'Neill QC, to which I responded here.  My conclusion was (and remains) that one is entitled to respect for the right to hold beliefs, but not respect for those beliefs themselves. Just because a person is entitled to hold a belief does not mean that another person has to pay for it, or suffer unlawful discrimination because of it. What is unworkable is trying to determine when and how people are entitled to exemptions from the general law because of a professed religious belief - or belief which they say should be elevated to the same status as religion.

Mr Henderson observes that

... the principle of non-discrimination on grounds of sexual orientation is also hugely important, and carving out exceptions would make it meaningless. Reconciling the two is difficult, but there must be a means of doing so that ensures religious freedom is more than just the freedom to believe what you want in private, and which celebrates and protects the fact that we live in a society which tolerates all kinds of different belief systems.

The problem is that the moment religion enters the public domain one is forced to pick and choose which religions and which of their practices are to be permitted and which are not.  This is not a straightforward exercise, to say the least.  A private member's bill has recently been introduced to the Lords to address one example, and it has provoked some illuminating if disturbing discussion in Hansard.

Still, I cannot help but think that the courts are not always the best way to deal with disagreements.  By using the cudgel of the state's coercive powers to prevent all manifestations of beliefs that we find objectionable, we are in danger of replacing one form of intolerance with another. It is not as though the B&B proprietors in this case or in Bull were out to ban homosexuality or otherwise oppress gay people; they simply had what others would find old fashioned views about marriage. Nor is it their fault that gay marriage is not presently lawful.  Mr Henderson correctly applauds the relatively civil fashion in which the dispute was conducted (in contradistinction to others who dipped their oars into the matter), but given that civility I wonder if litigation was really necessary.

Then again, let us look to the not-so-distant past and a different form of discrimination. In the mid-1970s the Sex Discrimination Act came into force. Yet in some well-known cases that followed soon after(1), elderly male judges ignored the plain meaning of the Act and everything that had ever been said about its purpose. Instead they announced found that separate treatment of men and women might be justified on the grounds of “chivalry and administrative convenience” or disregarded as de minimus.

The judgments read like quaint pieces of social history to modern readers. Perhaps the judges of the day did not see what the fuss was about, or felt that their views were nothing more than “common sense” – as indeed they probably were to an earlier generation. But just as we would now insist in a similar case that the law be applied and the discrimination against women outlawed, so we must decide cases on discrimination involving sexual orientation in the same fashion – unlawful discrimination is unlawful discrimination.

(1) See eg Peake v Automotive Products Ltd [1978] Q.B. 233, where Lord Denning MR offered in the context of different treatment of male and female factory workers "I must say it would be very wrong to my mind if this statute were thought to obliterate the differences between men and women or to do away with the chivalry and courtesy which we expect mankind to give womankind. The natural differences of sex must be regarded even in the interpretation of an Act of Parliament."

What makes a good argument

When I was at university, a common argument raised during tutorials was that someone could be ignored if they did not fit some demographic category thought to be relevant to the debate. Thus, someone from overseas might be told they could not comment on indigenous rights issues, while others were told they were the wrong race, gender, class or age, and so on it went.

This annoyed me at the time, and it continues to do so whenever I see someone trying it on now.  It might be the case that someone's characteristics lends them some extra insight to a particular question, but it does not render them automatically right on the issue, nor anyone else automatically wrong. 

By way of illustration, suppose we are debating the minimum level of income on which it is possible to survive in present-day Britain. Someone whose parents were billionaires and who has since inherited the family fortune is not exactly in a position to speak on the issue from personal experience. But it does not axiomatically mean that they have no hope of a valid contribution to the debate. They might for instance be highly intelligent and have absorbed vast amounts of relevant data and other evidence on the subject, and thereby have a very informed view.


We saw an argument along similar lines recently in respect of Michael Pinto-Duschinsky’s resignation from the Commission on a Bill of Rights.  He wrote an article in the Daily Mail arguing that because he and his family escaped the Nazis, he had a special perspective on human rights, and would not be lectured by others on the subject.  A good response was published on the UK Human Rights Blog here.

As observed in the comments thread under the UKHR post, Pinto-Duschinksy was arguing a sort of variation on Godwin's law - the rule that says the longer an internet forum discussion goes on, the greater the chance someone will offer "but that's what Hitler thought".  At that point it is a safe bet the discussion will have run its useful course.  The short answer to the point was given by the philosopher Jamie Whyte, who observed that it is not even as though Hitler was wrong about everything.  Hitler thought that Berlin was in Germany, for example, and no sane person would disagree just because Hitler might have said it.

Another variation again is Mr Whyte calls the “motive fallacy”, by which someone’s argument is purportedly discounted because they happen to have a personal reason to make it. For example, I might have a reason to tell my friends that a restaurant is the best of its kind in the area because it is the most convenient to me. But to disregard my choice for that reason alone would be fallacious, since my chosen restaurant might indeed be the best (leaving aside the subjective nature of the term).  In short, the fact that I do (or for that matter do not) have a motive for making a claim does not affect the truth of the claim.

Mr Whyte observes that barristers are the ultimate example, since they have not simply a financial incentive but a professional obligation to make an argument favouring their client. Yet the guilt or innocence of a defendant is a question independent of their barrister’s motivation – otherwise we could simply compare brief fees to determine which barrister has the greatest motivation and award the case to the opposing side.

All of the above is not to say that the motivation of a speaker is wholly irrelevant, but at most it should serve as a good reason to treat the claim with scepticism, and thus to examine the evidence and arguments offered in support much more carefully – but not to dismiss it out of hand. 

Equally, if someone is arguing against their own interests, then that may certainly be a reason to look twice at their argument, though it is still not necessarily conclusive. Hence the old saying that if the Archbishop of Canterbury says he believes in God he is simply doing his job; but on the other hand if he says he does not believe in God then we should sit up and pay attention. But whether God exists or not is independent of the Archbishop's personal belief (unless there is something he is not telling us ...).
Ultimately, arguments have to be assesssed independently of those who hold them - logic, reason and evidence is what should matter in public debate.
I say all this by way of introduction to my latest letter in the Times, published on 19 October 2012, reproduced below:

Dear Sir,

Emma-Clare Richmond (letter, 17 October) says that abortion has to be a woman’s issue, as men will “never experience the first hand pain of such a dreadfully upsetting dilemma”.

This is true, but it is also the case that only front line soldiers will ever experience the terror of combat and its dilemma of kill or be killed, and only the terminally ill face the tragic dilemma of assisted suicide. For the rest of us such issues will (hopefully) only ever be theoretical. Yet I do not think we should thereby be precluded from discussing Britain’s wars or the lawfulness of assisted suicide.

Experience of any form of human condition may give someone a better insight but it does not prevent others from forming valid and principled opinions – otherwise public debate would be considerably reduced, to say the least.

Readers should note, for the avoidance of doubt, that I have expressed no view on abortion itself – only on the concept of valid argument in a theoretical sense and of general application.

For those interested in the concept of valid argument, I would recommend an introductory series of articles written a few years ago by an old friend of mine, Dr Simon Clarke, which may be found online here. (Note the motive fallacy may be levelled against me in recommending Dr Clarke!)

MPs expenses

The issue of MPs’ expenses is back in the news. It seems that MPs have experienced much and learned little: the system is still being used as a cash cow, and they are still trying to keep the whole thing quiet.

According to the Telegraph:

The Independent Parliamentary Standards Authority (Ipsa) reversed its decision to publish information about MPs’ landlords today, after the Speaker of the House of Commons ordered the regulator to keep the information private for “security” reasons.

It is feared that several MPs may be exploiting a loophole in the rules that allows politicians to rent their homes to one another.

This means that MPs can still effectively build up property nest eggs at taxpayers’ expense, despite official attempts to stop the practice following the expenses scandal.

More details have followed since.

Both the amount of money MPs are paid and the method of payment – salary, bonus, expenses – are essentially political questions. They are however of legal interest in two respects. The first is the obvious question of whether expense claims are lawful; that is to say, whether they are within the rules. Various extremely high profile criminal prosecutions were made under the old regime, following determination of the prior question whether the courts or Parliament itself had jurisdiction over the matter. I wrote about this for Criminal Law & Justice Weekly (vol 175, 5 February 2011, p 73).

The second question is the rather more general point about the wrong approach to making law. In my forthcoming book (details on the sidebar in this blog) I have written about R v Chaytor and suggested something on the following lines:

The fundamental flaw is that any system which operates by people making claims and then hoping to get them approved, but with no restriction on the amount that might be claimed or penalty for having a number of claims refused, gives every encouragement to people to keep on shoving in claim after claim for anything and everything. Any rational, profit-maximising individual would do nothing else.

There are many alternatives. For example, MPs could simply have a fixed sum added to their salaries, to be spent on support staff, travelling expenses or whatever, but no more. Then – in sharp contrast with the present system – they would have every incentive to economise.

All the talk in the original controversy about needing second homes and travel expenses was predicated on the assumption that MPs actually needed to be in any particular physical place at any particular time. In the age of smartphones, videoconferencing and unlimited broadband access, however, that assumption is very hard to justify.

However, let us assume that it is indeed desirable for MPs to be physically present in the Houses of Parliament. Let us also assume that it would be unfair for MPs outside the M25 to be saddled with the extra costs of travelling to and staying in London. Then, one could build a hall of residence for those MPs (with a grander name if one prefers). It could be a modern, furnished and serviced apartment block next to the Palace of Westminster. It would cost a tiny fraction of the amount spent on second homes, the security costs would be far lower as there would only be one building to protect, and MPs would have no more and no less than they needed.

No doubt MPs would feel demeaned by this. But they might consider that a number of large city law firms have dormitories on their premises, together with a few ancillary services such as a canteen and laundry service. These are provided for partners working overtime on large deals. If the apartment block was within walking distance from the Houses of Parliament, (perhaps with an underground tunnel to reduce security costs and provide disabled access) it would slash travelling expenses as well.

This would go a long way towards restoring public confidence in MPs and Parliament generally. One fears though that a majority of MPs will still prefer to play the property market at the taxpayer’s expense and either withhold details from the public or take the loss of popularity on the chin.

Unless the above suggestion or a similarly radical reform is instigated, public confidence in Parliament will continue to be threatened. Needless to say, it is not only lawyers who should be concerned by that.

Prince Charles and his letters

UPDATED

The role of "Prince of Wales" is not particularly easy to define.  Aside from managing the Duchy of Cornwall, which is presumably almost completely delegated to professionals, the holder of the position seems to spend most of his time doing similar things to the monarch but (one suspects) with the same sort of feeling as the opening act for the Rolling Stones. 

No Prince of Wales in history has had to wait as long to be King as Prince Charles. Perhaps with a resultant sense of frustration, Prince Charles has for some years now been writing letters on all manner of subjects to all manner of MPs and others in officialdom.  In doing so he has been acting as a sort of unpaid lobbyist or semi-professional gadfly. 

Immediately one sees a problem.  When he becomes the monarch he will be required to be politically neutral, something his mother has almost always conscientiously observed.  In turn that means Charles III will have to be seen to be politically neutral.  But by writing so many letters on matters of political controversy, Prince Charles has been seen as anything but neutral or devoid of political opinions.  One presumes those opinions will not disappear overnight when he becomes Charles III. Therefore, he will be somewhat compromised as monarch from the beginning. 

With this in mind the Guardian newspaper made a freedom of information request to obtain a number of letters written by the Prince in 2004 and 2005. The request pertained to letters involving “advocacy” on the part of Prince Charles, defined as (i) identifying charitable need and setting up and driving forward charities to meet it, and/or (ii) the promotion of Prince Charles’ views on various issues.

In 2010 the Freedom of Information Act was amended to give the heir to the throne exemption from all future requests.  This is somewhat remarkable on its face and deserves further comment at another time.  Staying with the Guardian's request for now, however, the Upper Tribunal ruled in the Guardian's favour in September of this year (Evans v IC and Others (Seven Government Departments) [2012] UKUT 313 (AAC)).  Now, however, the Attorney-General has reversed that decision, in a rather surprising ruling.  The Telegraph reports: 

[The Attorney General] said it was in the national interest to ban publication of the letters “because if he forfeits his position of political neutrality as heir to the throne, he cannot easily recover it when he is king”.

... 

Mr Grieve overturned [the Upper Tribunal's] decision, saying there was an “exceptional case” for him to use his veto to prevent the Prince’s “most deeply held and personal beliefs” becoming public

In a 10-page summary of his reasons for overturning the judges’ decision, Mr Grieve said the Prince’s letters had been “urging a particular view on ministers” but this amounted to him “educating” himself about the work of government in preparation for becoming king, making the letters exempt from freedom of information requests.


The Attorney-General's ruling may be found here. I have to say I am not convinced by his reasoning, with the greatest of respect.  It is a stretch to argue that lobbying for a change in the law is "educating" the lobbyist in how government works; and if that was the objective behind his letters there were rather better ways in which the Prince could have gone about it - seeking advice from constitutional lawyers and political scientists for example.

Secondly, if disclosure of the content of the letters would indeed forfeit the Prince's political neutrality, then they should not have been written in the first place.  The answer is not for them to be written and then hushed up.

Thirdly, the Attorney General maintains that there is "nothing improper" in the letters, but that seems more like a reason for, not against, publication.

The Queen gives a weekly audience to the Prime Minister, and otherwise has ad hoc contact with politicians.  No doubt at these meetings she gives her opinion on various matters and, of course, the content of all such occasions remains confidential.  Here is the strongest ground in Prince Charles' favour: he may simply be informally copying what the Queen does already.  It is unrealistic to think that the Queen has never offered her personal views to the Prime Minister during the weekly audience.

Nevertheless, I do not think the situations are identical.  For a start, I am not aware that the Queen ever sent lobbying letters to anyone before she became Queen.  Secondly, the Queen has never indicated that she wishes to influence contentious political matters in a concerted fashion, as opposed simply to offering the Prime Minister the benefit of her experience of more than six decades in public life. By contrast, Prince Charles has not made secret his strong views on the environment and various other issues and therefore presents himself as much more of a political animal. In other words, it comes back to being seen to be impartial, much as justice has to be seen to be done. 

The present case is not the same situation as occurred with Prince Charles' private diaries, which were the subject of legal action a few years ago, and which I have written about for my forthcoming book (and previously for the New Law Journal).  The diaries were never intended to be anything other than an entertaining read for the Prince's close friends: they were certainly not an attempt to influence senior politicians. Prince Charles was therefore entitled to an expectation of privacy with regard to their contents and even to the fact of their existence. 

Nor is Prince Charles in the same position as, for example, a barrister hoping to become a judge one day. Although some barristers do become known for always acting for a particular type of litigant, and they may publish strong opinions on various areas of law, all are bound in their role as barristers by strict rules of conduct and the cab-rank principle. There is no equivalent for Prince Charles. Secondly, judges give virtually all their decisions in public, so one seen as favouring his former clients would be found out quickly. Again, that does not apply to the monarch, who does much in private including the aforementioned meetings with the Prime Minister.

The reality is that if the letters were published then pressure would mount for Prince Charles to step aside and allow William to become King when the Queen dies. It might be hard for Prince Charles to accept, but the truth is that the institution of the Monarchy would probably be more popular as a result, not least because it would not have to fend off inevitable rumours and accusations concerning the letters.

UPDATE: Jack Straw has written in defence of the letters here. It seems to me that the problem stems from the fact that Prince Charles has never made secret his wish to influence areas of very contentious politics - such as human rights - and areas of science, when he is qualified in neither and which one would not expect the monarch (or monarch to be) to attempt to influence.  He might offer an opinion in private but seems to be going beyond this with sustained letter-writing campaigns.  Were he to confine himself to helping with charities and building bridges between business and regulators - the sort of thing that no-one much disagrees with - there would be a lot less controversy and any correspondence would rightly be treated as confidential.