Appointments to the Supreme Court, or the Assumption of Sumption's Ascension

Published in Halsbury's Law Exchange here.

 

 

I was not in favour of the establishment of the Supreme Court, for the simple reason that there was nothing wrong with the old Appellate Committee of the House of Lords. Quite the opposite: it was one of the most esteemed judicial institutions in the world.

Nevertheless, the Supreme Court is permanently with us and it is therefore imperative that we make the best of it. Provided the standard of the actual judgments is maintained - which so far it has been - one can expect the court to enjoy the same global respect as its predecessor.

In fact, in one significant respect at least - the requirement of open justice - the court represents a tangible improvement on its predecessor. Moreover, despite having the same constitutional position as the Appellate Committee, the court has hinted at a greater willingness to assert itself against Strasbourg. At the same time, however, there have been some teething problems, which betray the haste with which the court was established.

First, there has been some thoroughly needless and confusing chopping and changing of the titles of judges. Secondly, the government seemed for a short time under the illusion that the court was nothing more than a department of the Ministry of Justice, which could be freely tinkered with according to the whim of the moment (though I suppose we can put that down to ignorance on the part of the relevant civil servants rather than a fault with the court itself). The third problem, and the subject of this post, concerns the process of appointments to the court.

Traditionally of course the bench has been drawn from the bar. In the lower courts there are two sound (but not necessarily decisive) reasons for this: the need for the judge to make findings of fact and also to determine issues of procedure. Both those roles are part of advocates’ stock in trade but are not an area of expertise for other legal practitioners. Neither forms part of the Supreme Court’s function, however, and therefore the likes of solicitors, employed lawyers or legal academics could in theory have equally suitable experience.

It would be unusual but not entirely unprecedented to appoint candidates directly to the highest court: one of the finest twentieth century law lords, Lord Reid, had never been a judge before joining the House of Lords. Neither had Lord Radcliffe nor Lord Carson.

Perhaps because of those factors, early in the Supreme Court's history a story emerged in the legal press that the well-known barrister Jonathan Sumption QC was to be appointed directly from the bar.

Mr Sumption is one of the country's leading silks, with a towering intellectual reputation. Rumour has it that he was once introduced in court by his opponent as the most intelligent man in England (the third counsel appearing in the case was then introduced as ipso facto not the most intelligent). Before reading for the bar he was a history don at Oxford, and in recent years has found time in addition to running a leading commercial practice to produce a weighty multi-volume history of the Hundred Years War.

Details of What Happened Next are set out in this article from the Times. Apparently Mr Sumption's proposed appointment was strongly opposed by the Court of Appeal judges, on three grounds. First, it was unfair: instead of working his judicial passage as they had, he had enjoyed the much higher income of the bar for much longer. Secondly, if he was permitted to leapfrog all the other court divisions it would be a disincentive for other top practitioners to apply for the bench, as they might hope to do the same. Thirdly, Sumption was obviously untested as a judge, although he had sat at first instance on the odd occasion as a deputy High Court judge.

Some Supreme Court justices also considered that the appointments process might be unlawful, which was expressed in a submission to the Lord Chancellor by Lord Mance. That was seen by some as unfortunate given that Lord Mance is married to Lady Justice Arden, a leading candidate for a Supreme Court appointment herself (both as a leading judge and, being female, a way of making the court more representative).

In the event, Sumption withdrew his candidature, despite having incurred the personal inconvenience of winding down his practice.

It now transpires that Mr Sumption is to be appointed after all. On this occasion it seems he has not found time to clear his desk; instead he has apparently asked for his appointment to be delayed to so he can finish the substantial litigation between two Russian tycoons in which he is instructed. The lucrative nature of that particular brief has not gone unnoticed, and is being cited as another example of Mr Sumption enjoying the money of the bar rather than undertaking the public service of the bench. Perhaps it might be a quid pro quo for Mr Sumption having cleared his desk for nothing last time. Either way, he is scarcely out of pocket if one considers the amount of extra time he has had at the bar compared with other Supreme Court justices.

There are several observations to make about what we might call the assumption of Sumption's ascension. First, although he will not alter the demographic composition of the bench himself, his appointment straight from the bar might be a modern precedent for others who would.

Secondly, if he had been told originally that his application would be successful, only to have it withdrawn, it would not reflect well on those responsible.

Thirdly, missing in all the discussion is the point that when it comes to developing the law, the Court of Appeal is in fact more influential than the Supreme Court, because it hears far more cases. It follows that the very best legal minds ought to spend at least some, if not most, of their judicial careers on the Court of Appeal, unless perhaps they lack the requisite expertise in procedural law (which as a practising barrister Sumption does not).

Fourthly, the controversy should not have happened before and should not be happening now. The process of appointments should have been one of the foremost questions when the Supreme Court was being devised. Issues such as those concerning Sumption should have been identified and resolved before the doors on the old Middlesex Guildhall on Parliament Square were ever opened.

Finally, however, one is relieved to be able to say that Sumption's ability to do the job is beyond question, as one of England's finest legal minds. Therefore, despite the unsatisfactory history of his (so far non-)appointment, no lasting damage to the institution will be caused if and when he finally begins his tenure.

The burqa ban in France

Published on Halsbury's Law Exchange here

On 11 April a new law took effect in France, banning the wearing of the burqa in public. Though there are no plans for any equivalent law in Britain, it would be idle to pretend the controversy has no relevance here.

At first sight it seems absurd that the state should regulate what clothing people choose to wear. Freedom of expression and freedom of religion require – as a strong starting point at least – the ability to display religious symbols and comply with religious tenets as to dress in public.

As ever, things are not that simple. The British state already regulates what people wear in public, for example by precluding indecently exposure. The limits of that regulation are always disputed but there is no argument for it to be repealed in toto. Further, wearing clothes with racist or otherwise offensive slogans might attract a public order prosecution. Accordingly, banning the burqa in public would not be a wholly unprecedented measure.

Whilst many might wear the burqa voluntarily, both by way of adherence to their religion and perhaps also a rejection of the oversexualisation of women in Western society, others may be forced to wear it. The new French law acknowledges the difference between the two situations: the wearer will face a fine of €450 and/or a course in “citizenship”, but a man who forces a woman to become a wearer will incur a fine of €30,000 and imprisonment. One would presume in the latter situation that there would be no prosecution of the woman.

It is not relevant that very few women (under 2,000 according to this report) actually wear the burqa in France (though if anything that is a reason in favour of the ban). Nor is the French government’s actual motivation for the ban (the subject of some speculation) relevant to whether it is morally justifiable or not.

All that said, I see no case at present for a ban in the UK. The main problem is that there are no cogent statistics showing how many women wear the item voluntarily as opposed to under duress. Given the inherent difficulties in compiling any such statistics (someone in an abusive relationship will probably not feel able to answer freely, even in an anonymous survey) it would seem unlikely there ever will be – though if anything that lends support to a ban. More importantly, however, anyone in an oppressive relationship will not be saved from abuse simply by the law preventing her from wearing a burqa in public – indeed, it risks making her a criminal as well as a victim. There is certainly a justification for the state acting against an oppressive husband who forces his wife to wear the burqa, but a burqa ban will not of itself release anyone from oppression and in any event there are already laws against domestic abuse, as well as private and public forms of assistance for its victims.

Arguments about whether the Koran really does mandate the wearing of the burqa or whether the item is simply a manifestation of extremism or a non-religious cultural practice do not settle the issue. The state is not in a position to adjudicate theological disputes, and freedom of religion precludes it from doing so in any event.

In essence, if a woman has been forced to wear the burqa by an oppressive husband she should have the right and the means (provided by the state) to leave that relationship if she wishes. If she has chosen to wear it voluntarily, her motivation – religious, cultural, fashion or other – is no-one else’s business. The resources of the state should be directed at identifying and addressing domestic abuse, not arresting people on a speculative basis because of their clothing.

Notwithstanding the above conclusion, there are particular circumstances in which both the state and private entities can and should ban the burqa (and various other items of clothing, both religious and non-religious). First, state schools should be permitted to ban religious clothing as part of the separation of church and state.

Secondly, banks, airports and other places with serious security concerns should be entitled to require burqas to be removed on their premises, as they do for anything else covering the face such as motorcycle helmets.

Thirdly, the rule of open justice – a cornerstone of the common law – should trump the right to wear a burqa. Accordingly, a witness may not insist on wearing the burqa whilst giving evidence, nor should the court be cleared whilst she is doing so. The present guidance to the contrary is, I suggest, unlawful.

Finally, I would hesitate before condemning the French, despite disagreeing with the ban. There is much to be admired in the French concept of laïcité, as foreshadowed by what I have written in earlier posts about law and religion. As a manifestation of that concept a ban may well be more justifiable.

Prisoners' voting rights and Britain's relationship with Strasbourg

I have been published in Criminal Law & Justice Weekly, Vol 175, 9 April 2011, p 229 on the subject of prisoner voting.

Religion and the law: squaring the circle

Published in Halsbury's Law Exchange (in slightly diluted form) here.

Mr Aiden O’Neill QC has written a counterpoint to recent developments in law and religion, a subject on which I have written several recent posts. His view deserves a response.

Mr O’Neill summaries the present state of the law as follows:

“The courts analyse such cases from a discrimination law perspective by asking whether a person without religiously based views would have been permitted to act in any of these ways. If both a religious and a non-religious person would not have been permitted to do these things, then there is no discrimination on grounds of religion or belief.”

He criticises this approach on the basis that there is a distinction between informed religious beliefs and secular beliefs; the former, he argues, are “intimately tied into the moral values to which [the religious] would adhere, by word and deed. Failing to act on those beliefs is not an option for the religious, because a failure so to act expresses for them a denial of their beliefs.”

There are several responses. First, it would be of small consolation to someone on the receiving end of what would otherwise be unlawful discrimination to be told that the discriminator was sincerely following a prescribed moral code. I doubt, for example, whether someone deemed untouchable by hardline adherents of the Hindu caste system, or excluded by followers of the former Dutch Reform Church, would have any sympathy for Mr O’Neill QC’s views. That those are extreme examples does not change the fundamental principle of non-discrimination.

Secondly, while it is true that some religious people who have been in the courts recently may have been genuine adherents of a mainstream religion who were acting according to deeply held beliefs, others seeking a religious-based exemption from anti-discrimination laws might simply be religious adherents of convenience, who offer a religious belief as a straw defence to justify bigotry held on other grounds. The courts are ill-equipped to judge anyone’s piety.

Thirdly, one would also have to define a religion, another exercise courts are not well placed to undertake.

Fourthly, there would have to be a list of acceptable or unacceptable religious beliefs for the purposes of legal exemption. No-one would support on religious grounds stoning someone to death for adultery, or withdrawing a female child from education, or forced marriages, or female genital mutilation. But compiling such a list would be an invidious task and bound to be over or under-inclusive. Alternatively, some principles would have to be formulated for the courts to implement on a case by case basis, which would likely lead to unacceptable uncertainty.

Mr O’Neill argues that, on his analysis, being religious is akin to having a disability: the law requires that account be taken of disability and appropriate measures taken to place the disabled on an equal footing with those without that disability. He says the same should occur for religions. The analogy is false. For a start, there is no choice about having a disability, whereas people often abandon or otherwise modify their religious beliefs.

Mr O’Neill would doubtless respond that for many it is not at all possible to change their beliefs, still less is it reasonable for the law to require them to do so. Yet the analogy still does not hold up: there is nothing about having a disability which affects anyone else’s rights, still less anyone else’s right not to be discriminated against. One person having a disability is totally irrelevant to anyone else’s right not to be discriminated against on the ground of race, gender, age or sexual orientation, for example – no reasonable adjustment would have anything to do with those grounds.

Underlying Mr O’Neill’s thesis is the assumption that religious beliefs are of a different nature to secular beliefs of any form and, he inevitably has to argue, somehow more deserving of the law’s protection. He contends that “there can be no proper comparison between those who would discriminate on grounds of a religiously informed conscience, and those who so act simply from unthinking incoherent prejudice or bigotry.”

This argument is not sustainable. Some religions might constitute deeply held belief systems with centuries of provenance. Others might be bizarre and extremist offshoots. Recent cases have shown the difficulties inherent in distinguishing one from the other. Moreover, someone might write a scholarly thesis on the dangers of religion and seek to exclude religious people from their public establishment accordingly – not all who discriminate on secular grounds are unthinking bigots.

The overarching principle regarding religion and the law is that one is entitled to respect for the right to hold beliefs, but not 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.

Law and Libya

Published on Halsbury's Law Exchange here.

At the time of writing, British aircraft and ships of the Royal Air Force and Royal Navy are engaged in enforcing a “no fly zone” over Libya pursuant to UN Resolution 1973. The resolution authorises “all necessary measures” to prevent a humanitarian disaster. By a lay definition, flying military jets into a sovereign territory and attacking its forces might also be called "war".

Either way, the governments of all the forces engaged in Libya have been at pains to stress that they are acting, and only will act, in accordance with Resolution 1973, and hence are abiding by international law.

There is no doubt that all participants will be eager to avoid repeating mistakes made in the US-led invasion of Iraq, and the legality of the actions in the eyes of the United Nations is one example. In the case of the United Kingdom, the decision to invade Iraq has been reviewed by the Chilcot Inquiry, whose final report is still awaited. Although the inquiry is not an international law tribunal, its findings on the Attorney-General’s advice will be considered authoritative. At this point it is fair to say that the UK Government’s position that the war was legal remains controversial.

If, however, one casts one's mind back to an earlier conflict of the most recent Labour Administration, one finds something rather striking with the Kosovo War of 1999. The United Nations charter authorises military action only in accordance with a Security Council resolution or in self-defence. No resolution was ever obtained with regard to the Kosovan conflict and NATO could not claim to have been acting in self defence.

The legality of the war was never subsequently ruled upon by an international tribunal such as the International Court of Justice. But it was studied in detail by the House of Commons Select Committee on Foreign Affairs, which can be considered to express the received view of the United Kingdom government on the point. The committee concluded that the war was of “dubious legality” under international law, although it went on to maintain that it was justified on moral grounds, in order to prevent a humanitarian disaster.

Such a claim can only be made because the aftermath of the war has been judged a success by the court of public opinion. If the result had been bloodshed on the scale of Iraq, then any good intentions or counter-scenario would have quickly been dismissed. Conversely, had Iraq somehow ended quickly with a stable, respected local government in place, no inquiry would have been called seven years later; instead the politicians responsible would have been feted as visionary international statesmen, as I argued in the New Law Journal last year (07 May 2010, Vol 160, Issue 7416), and international law issues have long been brushed aside.

Precisely the same factors apply to Libya. The intervention was prompted by fears of a bloodbath if Gaddafi’s forces had moved into rebel-held Benghazi. The authorising resolution is very broad in its terms – “all necessary measures” short of an occupying force. At least arguably, this does not even rule out the use of ground troops, provided that they withdraw in short order, or indeed if they are invited in by a putative sovereign authority (that is, rebel-held areas that purport to secede from Gaddafi’s regime). The question remains however as to whether the resolution permits – or even obliges – the international forces to intervene if rebel Libyan forces, emboldened to strike against Gaddafi’s depleted forces, start to inflict significant collateral damage in the form of civilian casualties.

From the perspective of international law, therefore, the intervention can be said to be legitimate as prosecuted to date. If the civil war is concluded swiftly and with few civilian casualties, the UN action will be acclaimed. If, however, it all goes wrong then the UN approval will be a flimsy defence for the reputation of the politicians responsible for involving British forces. It may be that civilian casualties will reach unacceptable levels, forcing an end to the campaign. Or a stalemate may ensue, but one or both sides will then inflict human rights abuses against anyone thought to have sided with their opponents. Or something no-one has yet thought of may occur. The only law that is prevalent in every war is the law of unforeseen consequences.

Arguably the greatest Western postwar general has been David Petraeus. Famously he turned to an embedded reporter at the start of the invasion of Iraq in 2003 (at the time Petraeus commanded the 101st Airborne Division) and precisely formulated the question which needs to be asked above all others by any politician or General contemplating military action: “Tell me how this ends.” This morning, according to both the Daily Telegraph and the Washington Post, the answer is not clear.

Lord Neuberger MR on Open Justice

Published on Halsbury's Law Exchange here.

On 16 March, Lord Neuberger MR delivered the Judicial Studies Board Annual Lecture 2011, entitled “Open Justice Unbound?” The speech contained his usual mixture of high erudition and a strong sense of practical justice, and deserves wide dissemination.

This post will be confined to the first part of the speech, which dealt with the form of judgments. This is something on which I have been published recently with a former colleague, Alexander Horne, in the New Law Journal (16 December 2010, Vol 160, p1735). I am relieved to be able to report that the article's conclusions were substantially consistent with Lord Neuberger's speech, and therefore rather than engage in repetition I will simply offer some observations on his Lordship’s points.

There can be no arguing with the overarching goal of clarity, as a sort of CPR 1.1 for judgment writing. Lord Neuberger overstates the case, however, when he says that it is necessary for judgments to be clear not just to lawyers but non-lawyers as well. The fact is that law is a learned profession, just as with, for example, medicine. The only way that a paper on, say, new heart transplant techniques could be rendered intelligible would be if the reader had studied the subject — and was hence no longer a member of “the public” — or if the paper were simplified to the point where it was more or less completely unhelpful to a surgeon. The same goes for a large majority of judgments. For cases of public interest other courts could adopt the Supreme Court’s practice of issuing a separate press release.

I share Lord Neuberger’s concerns about the length of judgments, something which has increased almost inexorably over the past two decades. He is certainly correct about one of the reasons, namely that “in recent years, there has been ... a sustained and justified outcry at the inexorable volume, the tedious length, and the inept drafting of many of the Acts of Parliament that have found their way onto the statute book”. Few areas of law have been immune but the tax system must be a contender for the worst example.

That said, the case for shorter judgments can be overstated. It was once said that first instance judgments should ideally be “brief courteous and wrong”, which wasn’t to say that appellate judgments should be “long-winded, rude and right”, though there are many examples of both. Much depends on whether a case raises a point of general importance: if so, some general guidance will be appropriate and expected, as Lord Neuberger states at para 15.

Another problematic aspect is the desire of the court to do justice in the individual case, but at the same time in accordance with the law. Sometimes the twain simply will never meet, however much intellectual agility the judge deploys. Lord Neuberger’s warning here is sound: endless exceptions to general principles in order to engineer what a judge regards as a fair outcome leads to complexity and confusion, which in turn generates future injustice of its own. As he says, if hard cases make bad law, it is equally true that bad law makes hard cases. But the subject of legal reasoning is one filling many textbooks and no further elaboration will be attempted here.

Lord Neuberger’s conclusion is that some form of training in judgment writing would be appropriate. It is a suggestion that would have offended some of his predecessors (and perhaps a few of his contemporaries), but, as he points out, barristers all go through extensive advocacy training, and advocacy is just as case-specific and individualistic as judgment writing.

I do not think that there is any need to follow the practice of the European Court of Justice or the European Court of Human Rights in having a uniform structure for judgments, but at the same time Lord Neuberger is surely correct that it would be a useful exercise for the Judicial Studies Board to define some fundamental principles of good judgments.

One is the need clearly to separate holdings that are fact-specific, those which the judge considers of general application and those which are obiter. Another is condensing facts to an appropriate degree (see Jones v Jones [2011] All ER (D) 231 (Jan) for an unfortunate example of a first instance judge going wrong in this respect). Often this will depend on the judge’s experience – or that of counsel – in the applicable area of law, but not always. A third factor is the aforementioned issue of multiple appellate judgments (on which see the NLJ article, supra).

Any aspiring judge looking for guidance on how to write a judgment could learn from studying examples of Lord Brown’s incisiveness, the clarity of Lord Hoffmann, or, going back a generation, the ability of Lords Reid, Diplock or Wilberforce to issue clear and practical general guidance.

Civil partnerships and the law

Published on Halsbury's Law Exchange here.

The question of religion and the law marches on. Yet another example concerns impending changes to the Civil Partnership Act 2004. These are intended to enable the registration of civil partnerships to take place on religious premises. More detail of the incoming law and its implications can be found on this post on the UK Human Rights Blog.


There are at least three competing rights: first, the property rights of the owner of any premises on which ceremonies are conducted; second, the right of sexual equality for prospective couples; and third, the right of religious freedom for all. The proprietor may wish to allow or exclude different forms of ceremonies according to his or her beliefs; couples of any description will not expect to be turned away on the ground of their religious beliefs or their sexuality or gender; and religious bodies will wish to sanction their own ceremonies in accordance with their own beliefs and not otherwise.

First one may consider the proprietor. By choosing to offer services to the public he or she must do so within the framework of the law of the land, including equality laws. That was the point which precluded the Christian B&B owners in other well-known proceedings from arguing that they should be permitted to exclude guests on the ground that the B&B was also their home. Equally, if the state licenses an activity such as the provision of marriage ceremony services then it will do so under the applicable equality laws.

Accordingly, the second right would ‘trump’ the first in so far as the proprietor could be said to be dealing with the public. If on the other hand he was holding a private function he could invite whomsoever he pleased and the second right would not be engaged.

Assume, though, that the provision of marriage services is a service to the public, as with opening a restaurant or running a hotel. Then, one meets the objection that a religious organisation wishing to hold only its own ceremonies should be entitled to do just that, and all the more so when it is being held on its own premises too. If the state is to wield the full force of the equality laws, and decide that no discrimination in the provision of marriage services is permissible, then freedom of religion is in for a thin time.

Under the 2004 Act, however, no religious organisation is to be forced to do anything in this regard. Nor is there any prospect of Strasbourg compelling a change: the European Court of Human Rights has refused permission to appeal in a challenge to the ban on gay marriage in Austria ((Schalk and Kopf v Austria (App. No. 30141/04)). All that is in the offing is that religious institutions will no longer be prevented from holding civil partnerships, which on any view is an expansion of everyone’s freedom. What is not on the cards is the ability of any prospective couple to compel an institution to register their partnership, by arguing that a refusal constitutes unlawful discrimination.

Nevertheless, one cannot rule out the prospect of future change. Perhaps a more radical development might be considered, along the lines of France (if anything a more religious country than the UK), to separate church and state completely with regard to marriage. The legal contract of marriage should be signed in a registry office only. Thereafter, at any time(s) and place(s) of their choosing, couples could perform any ceremony they wish at any religious or non religious venue. No legal requirements or restrictions would be involved, since the ceremony would be akin to a private party or religious observance - no-one would suggest the state has any right to superintend the guest list for, or any other aspect of, such occasions. Moreover, the service being offered by a religious institution would not be that of any celebration of any union; it would offer to give its own blessing in accordance with its own tenets. No-one should be entitled to compel a religion to alter its tenets.

There remains a residual point concerning the word “marriage”, which in law is still confined to male and female unions. I leave it to readers to decide if the principles I have set out above require a change. I would however note three things. First, if there is no actual difference in the legal status of marriage and civil partnerships, being unable to use the term in official documents is of no actual consequence. Secondly, it may be that over time opposition to merging the terms will fade in any event, as have so many formerly hotly contested equality issues. Thirdly, any change ought to come from a free vote in the House of Commons, not through the courts.

Religion and equality

Published on Halsbury's Law Exchange here.

Lord Denning once wrote “Without religion there is no morality, and without morality there is no law.” It is safe to say that today’s judiciary would not likely agree.

On 10 March Paul Diamond, the barrister who has appeared in a number of recent cases on the issue, appeared with Lord Falkner QC on Radio 4. Mr Diamond argued that recent cases showed the courts trumping the right of religious freedom with the right of sexual equality. He said that religion was a “core” human right which should not be suppressed by “enforced morality”.

Immediately he was forced to concede that there were limits to freedom of religion, such as recognising polygamy (I interpolate that it is not clearly justifiable to ban polygamy where it involves consenting adults), or if some zealot tried to prevent a female child from being educated.

Mr Diamond argued nevertheless that there were far too many restrictions in Britain at present, and that Parliament needed to step in to correct wayward judges.

The answer to Mr Diamond’s concerns is that one is entitled to respect for one’s beliefs – but not respect for those beliefs themselves. Or, to put it another way, one can practice any religion, but not demand that the taxpayer fund that practice, or that employers grant exemptions from duties or requirements on religious grounds (unless the employer and employee freely agree), or that schools grant exemptions from uniform policies or class attendance. Most certainly one cannot expect on religious grounds a different application of the criminal law (see Criminal Law & Justice Weekly, 2011, Vol 175, p 124).

Thus Mr Diamond railed against the British Airways’ ban on a member of staff wearing a crucifix, without acknowledging that the airline had the right to set its own uniform requirements. If one disagreed with the rules, one shouldn’t accept employment there. The only time the state should interfere with the airline’s policy would be if the airline was requiring indecent clothing, or clothing with racially offensive slogans on them, or some other such extreme and improbable example. This would avoid arguments over which symbols are religious as opposed to cultural or anything else, and whether one religion was receiving favourable treatment. Having said that, it does seem unfair that the airline permitted other religious symbols but not the crucifix, and it can hardly be said that the crucifix was likely to have offended any passengers and thereby damaged the airline’s business.

The same goes for the protection of religious – or any other – belief system in the context of employment. Presently the law on that issue is needlessly complex. Instead the law should provide that employees can only be hired, fired, promoted or disciplined according to conduct relevant to their employment.

Ordinarily relevant conduct would not include religious beliefs or many other belief systems. For example, the religious or political or scientific beliefs of a tax accountant would usually bear no relation to her employment, so any adverse treatment resulting from those beliefs would be unfair and potentially actionable. On the other hand, if she were suddenly persuaded after reading a political tract that all taxation was theft, and therefore it was a moral duty not to pay any, dismissal on the ground of her beliefs might well be justifiable. It would also be reasonable for a religious organisation hiring someone to give sermons to inquire into their beliefs ... All too often the present law seems to comprise the usual English method of overly complex regulation with overly complex exemptions, rather than application of principle.

The liberal approach advocated above would be the answer to another case in the news this week, namely the claim of a hunt saboteur that his anti-hunting beliefs should be protected from discrimination in the same way as religion. If he had been employed as a Master of Foxhounds then his beliefs would be relevant to his employment, and his employer could hardly be expected to permit him not to carry out any lawful duties because of his beliefs. If they were not relevant then the employer would be acting unreasonably and unlawfully by taking his views into account in hiring or dismissing him. There is no need for law makers to get bogged down in trying to define “religion”, and what secular philosophies or values deserve equivalent status to religious beliefs.

Of course there inevitably remain grey areas, and the question of whether a local authority should consider the views of prospective foster parents is a good example, though in this respect Mr Diamond went too far in his claimed consequences of the recent case on point. All that was established in that decision was that the authority was entitled to take parents’ views into account, though save in the most extreme cases it should be of little or no relevance.

The Reduced Law Dictionary, by Roderick Ramage

Published in the New Law Journal, vol 161, 11 March 2011, p 366

Readers of this journal have long been entertained by the “snippets” column, consisting of anecdotes and observations, each one exactly 101 words long, which one finds scattered across the pages from time to time. The author of these pieces is Mr Roderick Ramage.

Someone obviously jabbed Mr Ramage in the ribs recently and told him that he ought to compile a few of them into a book, for that is what he has now done. Naturally he has selected 101 of them. The reason for the fixation with the number 101 is explained at the start of the book, which I will leave readers to learn for themselves. He has given the collection the rather fetching title The Reduced Law Dictionary.

For some but not all of the snippets Mr Ramage has details of the sources at the back of the book. Most of his cited cases come with references too. The snippets themselves are drawn from a very wide range of subject areas, and form an entirely random collection accordingly. Some are succinct points of law, some rather jejune, some amuse, while others give cause for regret. For example, no. 43 tells us that an attempt was made by Parliament back in the 1930s to do something about the grey squirrel invasion, an effort which we can now say with hindsight was, sadly, largely futile. We also learn in no. 38 about elephant farming in Scotland ...

Other scattered historical gems include the "brickbat" of Norman French (Mr Ramage prefers "dog French") of no. 49, and an explanation of "deed poll" in no. 48.

Then there are the outright controversial. Number 92 rails against “Tesco Law”, the opening up of legal services to a much wider range of potential suppliers, including the eponymous supermarket chain. Mr Ramage thinks any such supplier will pay lip service to traditional professional standards but insists that “in reality ... directors will continue to perform their company law duty to maximise profits.”

Well in reality they probably will, but another feature of reality is that even in traditional firms nowadays Mr Ramage will find fewer colleagues suffused with the tradition of service than in his youth, and rather more that are suffused with the modern tradition of making money. The steady trail of downfallen greedy solicitors through the Solicitors’ Disciplinary Tribunal each year confirms as much. But Mr Ramage is right to draw attention to how the Solicitors’ Code of Conduct will be reconciled with directors’ duties that do not apply to a traditional solicitors’ partnership.

Rather more inflammatory is no. 82, where Mr Ramage tells us that attacks on the Archbishop of Canterbury’s well-known speech about some adoption of Sharia law being “inevitable” was all a misunderstanding; that the Archbishop was only advocating some private law arrangements which might be recognised along with other arbitration agreements.

In fact that was the one thing the Archbishop and his apologists conspicuously failed to understand, particularly when making the inapposite comparison with the Beth Din. It is a fundamental feature of the common law principle of freedom of contract that parties may resolve disputes in a method of their choosing – and if they choose a foreign system of law, recognition of the outcome involves no “accommodation” of that system within English law, still less a “parallel system”. Indeed, in the case of Jewish law procedures, they are expressly stated to be subject to the law of the land. The Archbishop would have done well also to have acknowledged the possibility of private forms of dispute resolution falling foul of English public policy and being unenforceable accordingly.

None of this, however, is necessarily a bad thing in the context of the book, which isn’t purporting to be a political tract or a serious legal textbook but rather an amusing potpourri, or an olla podrida as Francis Bennion used to call his column in Criminal Law & Justice Weekly. In that respect firing off provocative remarks here and there adds to the interest – as evidenced by the fact that I have just found rather more than 202 words to say about the 202 words of no’s 82 and 92.

Mr Ramage says that he started compiling the snippets as a means of light relief from his day job (he is a solicitor). He can take extra satisfaction from the fact that through the original column and now this book he has often provided light relief for the rest of us as well.

Foster care and religion: the legal debate

Published on Halsbury's Law Exchange here.

In a previous post I considered the case of a Christian couple whose views on homosexuality rendered them unsuitable in the eyes of their local authority to foster children. This week a different couple were also unsuccessful in seeking to challenge their local authority on the same issue (R (Johns and another) v Derby City Council (Equality and Human Rights Commission intervening) [2011] All ER (D) 292 (Feb)), and predictably the same strident debate in the media has followed.

The judges held that there was a need to value diversity and promote equality and to value, encourage and support children in a non-judgemental way, regardless of their sexual orientation or preference. That duty did not apply only to the child and the individual placement, but to the wider context, including the main foster carer, a child's parents and the wider family, any of whom might be homosexual. In those circumstances, it was impossible to maintain that a local authority was not entitled to consider prospective foster carers’ views on sexuality, least of all when it was apparent that the views held and expressed might well affect their behaviour as foster carers. The authority was entitled to explore the extent to which prospective foster carers' beliefs might affect their behaviour and their treatment of a child being fostered by them.

I am a firm advocate of both sexual equality and a complete separation of Church and state, and sympathise with the authority's view accordingly. But the situation is quite complex.

The first question - not considered anywhere in the judgment or much in the literature - is whether or not the same test should apply for placing children with foster parents as for removing children from their original parents.

If the test were to be the same, then it would have to be far less intrusive than the current foster parent investigation, unless we were prepared to have the Orwellian spectre of local authorities investigating all parents and interrogating them regularly as to every aspect of their social and political views.

Given, therefore, that it is an unavoidable fact that there are millions of religious parents and they are not being deemed ipso facto unsuitable, it might be asked why the authority should concern itself with the religious beliefs of prospective foster parents. On the other hand, placing any children, still less ethnic minority children, with devout adherents of the former Dutch Reform Church would be unreasonable to say the least, as would be the case if the parents were open admirers of Osama Bin Laden who expressed the desire to swell the ranks of martyrs. One could imagine many others.

It does not therefore seem right to allow carte blanche foster placement with no investigation of the views of prospective parents.

What, therefore, should that investigation entail? Rosalind English in the UK Human Rights Blog considers that religion by definition requires a narrow minded approach to matters such as sexual orientation, blasphemy, the status of women and so on, and therefore the chances of any admitted religious adherent passing the authority's muster must be slim. They will therefore have to lie about their beliefs or not bother.

That may now be the law, but despite agreeing with Ms English that a religion almost by definition must require adherence to its own tenets and some (at least implicit) denigration of non-believers or other deviants (though not necessarily for all religions - and indeed one further point is how to define a religion), I am not persuaded that this should indeed be the law.

I return to the previous post, in which I argued that given we still (fortunately) have freedom of religion and freedom of thought, a wide mesh for tolerable views should be applied. After all, a child has to be educated in the state run or state-approved school system and it is idle to assume that children will not encounter all manner of views, good, bad, arguable and indifferent in all aspects of their life. If that school system does its job properly the children will learn to question, debate and investigate views including those of their parents. Indeed, if the state is concerned about unacceptably narrow views it should question the very concept of religious schools, which in my view are simply not compatible with the goal of a diverse, tolerant society, however excellent their academic results or disciplinary record.

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.

One final point. A question was raised that the prospective carers in the instant case “would not take a Muslim child in their care to a mosque”. Children should not be considered to have a religion of their own, they should be allowed – and encouraged – to investigate and question all matters of faith and to make their own mind up in due course.