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Wednesday, 20 April 2011

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 Courts 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.

Thursday, 14 April 2011

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.

Tuesday, 12 April 2011

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.

Wednesday, 6 April 2011

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.