Religion and the law in France

Hypocrite that I am, I renegged on my promise not to write to the Times anymore.  This letter was published on 9 January 2012

Mr Edward Carey (letter, 6 January) criticises France’s integration policy, and offers the burka ban as example of its flaws. It might be said that the problem in France is not the policy as such, but the failure to implement it. A glance at the ethnic ghettos in France and lack of minority representation amongst the French great and the good suggests that France might demand that immigrants become French but too often declines to treat them as such.

The burka ban was implemented not simply as part of a policy towards the immigrant community but rather the French concept of laïcité, or separation of church and state. I do not think the ban was a necessary consequence of laïcité, but nonetheless that concept if implemented consistently would apply equally to immigrants and indigenous alike, and would have avoided many of the disputes in Britain of the past few years about religious exemptions for minorities.

Botham and Lamb v Khan: Just not cricket

I will be published in this week's New Law Journal on the libel action brought by Ian Botham and Allan Lamb against Imran Khan. The citation will be NLJ vol 162, 13 January 2012, p 70. The article will become available on the NLJ website next week. 

The fugitive: Roman Polanski

I have been published in this week's New Law Journal (Vol 161, 9 December 2011, p1714) on the libel action of Roman Polanski from earlier this century. 

Riot sentences - a response

Published in Criminal Law & Justice Weekly, Vol. 175, December 3 2011, p 721

Recently in CL&J (p.596, ante), Caron Thatcher and Emmanouela Mylonaki of London South Bank University considered the sentences handed out following the August riots in London and elsewhere. The theme of their article was that some of the sentences were disproportionately high, at least in the case of offences not involving violence. It seems to me, however, that there are indeed reasons particular to riots which do justify higher sentences than ordinary incidents of public disorder or theft.


Continue reading here.

Fair trials and the freedom of the press: when fundamental principles conflict

Published on Halsbury's Law Exchange here.

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.


Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press.

One very recent manifestation of that inherent conflict concerned a blog by a well-known political commentator about the Stephen Lawrence murder trial. The blog has been referred to the Attorney-General for consideration for prosecution for contempt of court. As the trial is still in progress nothing more will be said about it.

A recent occasion on which the courts had to consider the same issue, however, was the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug), which arose out of the murder of Joanna Yeats at the end of 2010.

Police attention was initiallyfocused on Miss Yeats’ landlord, who was arrested but released without charge. Before suspicion had been lifted however, some elements of the press printed all manner of lurid allegations about him. In the event those mattered not, since the real murderer did not dispute the fact of having killed Miss Yeats. It was held however that if the landlord had faced prosecution, he would have been able to raise a serious argument that he could not receive a fair trial because of this adverse publicity. Even though the argument would probably have failed, it would have been properly made and therefore would have incurred tangible costs and delays to the trial process, and a possible ground of appeal.

Accordingly, even the most robust defenders of freedom of speech would have to concede some limitations on the right of the press to influence an extant trial.

The Yeats decision raised some important points about the present state of the law, and points for reform. What it did not consider, however, was the possible influence – not for the good – of the internet. As I wrote in an article on the case for Criminal Law & Justice Weekly, one of the central planks of the publishers’ defence was that the articles would have faded from the jurors’ memories by the time of the trial. But articles would still have been readily obtainable online.

Moreover, no prosecution for contempt of court will be possible in the case of articles published overseas, although they may be readily accessible to British citizens. For the same reason I have always suspected that superinjunctions for privacy would be a flash in the pan, since anyone minded to do so could expose material which is the subject of an injunction with impunity if they were based outside the jurisdiction.

It can only be hoped that the fair trial process is not destroyed in that fashion. For all of the arguments in favour of free speech, one can find many instances of tabloid journalism grossly interfering with justice. One thinks of Hollywood circuses from the Fatty Arbuckle scandal of the 1920s (see New Law Journal [2011], vol 161, p 1150) to the OJ Simpson fiasco of more recent times: few would wish to see justice conducted – and corrupted – in the same manner in this country.

Impossible to employ

Published on Halsbury's Law Exchange here.

Last week Stephen Levinson wrote about the law making process, and in particular the problems which bedevil the creation of employment law.


Mr Levinson identified four structural reasons behind the problems with employment law making: (i) responsibility for employment law is spread between four separate departments; (ii) civil servants continuously move between departments, denuding them of knowledge and experience; (iii) new statutes are almost invariably followed by statutory instrument after statutory instrument; and (iv) there is often inadequate consultation.

These are all valid points, and no doubt applicable to many other areas of law. I would venture to add two further points. The first is that much employment law is now made in Europe. Complex directives have to be transposed into national law. The last say on their interpretation is not that of the domestic courts but rather the European Courts. Whether they make good or bad decisions, the fact remains that the process by which employment laws are made, and by which answers to employment questions are reached, is rendered more complex, slow and expensive by an extra layer of regulation emanating from the European Union. For large companies able to retain expensive advice this may be manageable, if inefficient; for smaller firms it may be unmanageable and a disincentive to hire more staff. For both employers and employees it will make knowing their rights all the more difficult.

The second point is the most fundamental as well as the most obvious: it is policy that produces complexity. Employment law is overly complex because lawmakers are always tempted to try and micromanage employment relations. No doubt this is (usually) done with good intentions. One often hears employment rights being described as “fundamental”. In many instances I would not disagree – it is not as though anyone would or should advocate returning to a Victorianesque world of chimney sweep wages and conditions set entirely by the free market. I would however make three observations.

First, all employment rights, fundamental or otherwise, are wholly irrelevant to a substantial portion of workers, namely the self-employed. The likes of public holidays, sickness and maternity leave, the minimum wage, working time regulations and so forth mean nothing to the self-employed. Of course that does not undermine the need for protection of those who are employed from being exploited. But the more complex and costly it becomes to hire someone will, as mentioned, make employers more reluctant to hire new staff.

Secondly, complex provisions harm, not help, vulnerable workers. They will not be able to afford the increasingly expensive advice about their rights, nor will any employment litigation be resolved as quickly or efficiently as it might be otherwise. They will find it harder to obtain work because many employers cannot face the red tape and uncertainty that complex employment law brings and will decide against expansion accordingly.

Thirdly, it is not as simple for the state to play Robin Hood as some recent employment decisions seem to assume. For example, the European Courts ruled recently that employees who are sick during their holidays should be able to claim the time as sick leave, thus preserving their holidays. One can see the superficial attraction: if a certain amount of paid leave (holiday) is considered a “fundamental right”, then ensuring that employees retain the benefit that leave irrespective of the misfortune of illness is a logical step. However, a right can only exist if someone else assumes a corresponding duty, and in this case obviously the duty has to be that of the employer. The employer must therefore assume a greater duty.

The problem is of course that employment relations are not static. Employers can be expected to respond to the increased (but uncertain) costs that they will face by any or all of the following measures: negotiating lower wages, paying shareholders lower dividends, or raising prices. At least two of those will affect employees directly (with their own wages, plus the fact that, as consumers, they will have to pay higher prices that other companies impose in response to the ruling) and all three will as well in the case of employees who are also shareholders. It also gives dishonest employees an incentive to claim sickness at opportune moments in order to extend their holiday entitlement, which of course will be at the expense of the honest employees who will be left sharing the increased costs and also covering for the unscrupulous. Arguably, therefore, it would have been better for the state not to have intervened at all in that case.

As Mr Levinson concludes there is no silver bullet. But one does hope that his suggestion for greater thought to be given to the law making process is taken on board by the Cabinet Office. Improving employment law is a difficult task, but that makes it more, not less important.

End of the beginning

I have recently changed roles at LNUK and am now Managing Editor of the Journals & Magazines department.  The handover period rather got in the way of any articles and blogs, but something close to normal service should now resume.

The ties that bind us

Published on Halsbury's Law Exchange here

Prime Minister David Cameron made quite a few headlines with a passage in his recent speech to the Conservative Party Conference. Having stated that he was “consulting on gay marriage”, he went on to say:


"Conservatives believe in the ties that bind us; that society is stronger when we make vows to each other and support each other. So I don’t support gay marriage despite being a Conservative. I support gay marriage because I’m a Conservative.”

Adam Wagner has a helpful post on the UK Human Rights Blog here. It is also a subject I have written on previously for HLE.

Mr Wagner’s post sets out the background. It seems to me that we have reached the point where Mr Cameron poses the question by having proceeded through three primary issues. The first issue was that the legal rights that marriage has long conferred, in the form of property, inheritance and so forth, were seen to discriminate against those who could not legally marry. The concept of civil partnerships was therefore created in order to provide same-sex couples with the same legal rights.

The second issue concerned the right of registrars to refuse to conduct civil partnerships on religious grounds. They were not permitted to refuse, though there may be more litigation to come on that point.

The third issue was whether religious premises should be permitted to host civil ceremonies. The law giving effect to this (s 202 of the Equality Act 2010) has not yet come into force.

We have therefore now reached, or are about to reach, the stage where civil partnerships have the same legal status of marriage; that no registrar can refuse to conduct them on religious grounds; and that religious groups may choose to host civil partnership ceremonies (but may not be forced to do so).

Two side issues arise. One is why civil partnerships have to be restricted to same-sex relationships akin to marriage: some siblings may choose to live together in a chase relationship all their lives, but they will not be permitted to enter into either a civil partnership or a marriage. The second concerns whether religious groups will always be able to refuse to conduct civil ceremonies on their premises. As enacted s 202 of the 2010 Act specifically provides that

“For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”

but obviously enough there will remain the possibility of change in the future as some religious groups fear.

Leaving those issues aside, however, brings us to Mr Cameron’s urging of the final step, with the end of the ban on same-sex marriages.

The fact that civil partnerships have the same legal status in domestic law is not a complete answer. The word “marriage” carries a deeply and sincerely held meaning for many, and has an ancient pedigree. We should not lightly dismiss those who object to changing it.

On the other hand, the very fact that the word carries powerful connotations gives weight to the argument that it should not be denied to those who want it. Pink News makes both of those points:

Religious gay people want religious ceremonies – something the law does not currently allow. Others, who may be religious or secular, crave the gravity and recognition the word marriage offers.

There may be no difference in the rights and benefits received by those in civil partnerships, but to be married is to make a statement – to your partner, to your loved ones, to the world.

Additionally, some straight couples ... want their relationships recognised in law without what they see as the patriarchal, traditional overtones of marriage. There is discrimination here too, as legally, they cannot have a civil partnership.

Mr Wagner in the article linked aove quotes one of the opposing viewpoints:

The Scottish Catholic Church has said it will fight the proposal in Scotland, arguing that the government did not have a mandate to “reconstruct society on ideological grounds”.

Aside from the emotional, religious and sentimental implications of the word “marriage” (which as mentioned should not be underestimated), there is the question of overseas recognition of marriages. The British concept of civil partnerships will not necessarily be recognised by foreign states should a couple emigrate. Then again, simply giving homosexual couples the right to use the word “marriage” will not necessarily mean that their marriage would be recognised abroad, at least not universally.

Personally I would not object to the term being extended to allow same-sex marriages. In the past there have been taboos – primarily social but in certain countries at certain times also legal – on mixed race or mixed religious marriages. We in Britain in the present day rightly disdain such discrimination. Further liberalizing the term to allow same-sex marriages is not, in the present context, illogical or unfair: if anything it would be the opposite.

One objection always raised is that of the “slippery slope”; if we allow x then y and z will follow. That is never a sufficient argument of itself, however. Unless we ban everything or nothing we are always on a slippery slope of sorts. No doubt some will argue that allowing gay marriage axiomatically should allow any other form of relationship – siblings, polygamy, bestiality – to marry as well; but that no more follows than to say that if homosexual marriages are prohibited so should secular marriages.

But it is fair to say that the issue is far from straightforward. In turn that means that Mr Wagner is correct that this is a matter for Parliament, not the courts (whether in this country or in Strasbourg).

I would finally reiterate the suggestion I made in the article linked above, namely:


“… 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. Then 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."

Such a solution would mean that religious groups would not consider marriage to be valid, other than as a legal nicety, unless their own blessing had been bestowed in accordance with their own tenets. Non-religious people would be happy as they would have the legal right to the word “marriage” without any religious connotation.

It is never possible to please everyone, but it seems to me that the solution proffered would come the closest to doing so.

When the press oppress

I will be published in next week's Criminal Law & Justice Weekly on the case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug).  The citation for the article is Criminal Law & Justice Weekly, vol 175, 17 September 2011, p 591.

The opening two paragraphs are reproduced below, and the article will be accessible in due course on the CL&J website (link on the left hand side of the page):

Two principles fundamental to English law are open justice and freedom of the press. The right of the public to know via the press who has been charged with what is one of the key features that distinguishes a free society from the sort of tyrannies where those deemed not to be on message politically disappear and are never heard from again.


Equally fundamental, however, is the right to a fair trial, which requires among other things that an accused is judged solely according to the evidence before the court, not the fevered imaginings of the more populist elements of the press. Balancing the competing principles formed the basis of the recent case of HM Attorney-General v MGN Ltd and another [2011] All ER (D) 06 (Aug).

English riots - appropriate sentences

A short comment on sentencing the rioters, published on Halsbury's Law Exchange 

Sentencing rioters will take place against a backdrop of public anger and media outrage. In any such instance it is important that the rule of law applies and the court is not swayed simply by the unpopularity of the offender or offenders before it. 

That said, two factors come into play as part of the application of the law. First, it is a normal part of the sentencing process to weigh aggravating and mitigating factors. In the case of the rioters, taking advantage of the police being overstretched will not tell in an offender's favour, though it might be a mitigating factor if one could argue that an offender was normally a law abiding person who acted spontaneously, rather than a career criminal. 

Secondly, deterrence is a legitimate sentencing objective, and discouraging the public from starting civil unrest or taking advantage of it for criminal purposes is a factor not present in ordinary theft cases. On that basis, rather than the more crude goal of retribution, longer sentences for rioters can arguably be justified. (Not that retribution is wholly irrelevant to sentencing.)

One other aspect that the rioters give rise to is the cost and other resources associated with a large increase in offenders.  It will be tempting for more lenient sentences to be passed, and a greater proportion to be non-custodial, simply on the basis that the country is struggling to accommodate prisoners as it is.  Of course in theory this should have no impact.  One wonders if it will be the same in practice.