"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Wednesday, 22 June 2011

Rights in schools: getting out of pupils’ hair

For Halsbury's Law Exchange, published here

When the magazine Punch was still extant, and still funny (not the same thing in its case), it used to have a column for amusing newspaper headlines or bylines, of the sort that were later found in endless round-robin emails. My personal favourite was an apparently genuine advertisement offering “a free set of bass guitar strings with every trumpet purchased”.

Another I remember told of a schoolboy who had been “suspended by his head because of his long hair”. Nowadays the unfortunate schoolboy would have a legal remedy against the school, whichever way one interprets the headline (double pun acknowledged). If he was caught with his hair somewhere, doubtless someone would fashion a personal injury action against the school for negligently failing to remove the hazard. If on the other hand he was excluded from the school for a time because of the length of his hair, then he might have an action along the lines of the recent decision in SG v St Gregory’s Catholic Science College [2011] All ER (D) 113 (Jun).

The case concerned a pupil, SG, who wore his hair in a style known as "cornrows". Although not explicitly contrary to the school's written policy, it had been made clear at the start of the year (at a meeting at which SG and his parents were not present) that the style would be banned.

SG brought judicial review proceedings to challenge the ban, contending, inter alia, that the policy constituted indirect discrimination on the ground of his race, pursuant to s 19 of the Race Relations Act 1976 and s 85 of the Equality Act 2010.

The question thrown up by the case essentially concerns the scope of the freedom of a school to set a uniform policy. One might have thought the limits should be very broad, but not so broad as to include discriminatory aspects: a child should not be forced to act contrary to his or her own culture. General rules may well inadvertently have that effect: a ruling requiring no hats might clash with some religions, for a start.

Even if the UK were to adopt the French concept of laïcité and ban all religious symbols in schools, the issue would still arise in cases such as SG’s, where the ground of objection was one of race or culture rather than religion.

It certainly was not the intent of the policy in SG’s case to discriminate against anyone; hence the action was for indirect discrimination. This required SG to show that the school had a policy which applied equally to all but which placed one group at a particular disadvantage, and that the policy could not be shown to be a proportionate means of achieving a legitimate aim.

Collins J held that:

It is only if there is a genuine cultural and family practice of not cutting males’ hair and wearing cornrows that an exception could be made. It would be made clear that the grounds for such an exception would have to be established and that conformity must occur unless to conform was regarded as impossible. There is no reason why hairstyles which might be indicative of gang culture should be permitted.”

As a starting point, no-one would suggest that a school should discriminate, knowingly or otherwise, against a particular culture. But there remains room for disquiet. It is almost inevitable that some symbols of importance to some pupils will be excluded by any uniform policy. Collins J said that only "genuine" cultural symbols or practices could form a ground of challenge. But how is the school to judge what is genuine? What of kilts and tartans, both of which can be said to be an important symbol of Scottish culture now, but neither of which have anything like the ancestry television and films would have us believe?

It seems to me that requiring schools to adjudicate on the genuineness of a particular cultural symbol is akin to the decision in Nicholson v Grainger to elevate non-religious belief systems to the status of religions for employment purposes. For an employer to try and determine the status of a belief system is an unwieldy and unnecessary exercise, it will be the same for schools. Adam Wagner writes that

schools will be frantically reexamining their hair and clothing policies for potential discrimination and students dreaming of their day winning against their teachers in court

Which may or may not be the best use of the ever-stretched school resources.

Many pupils (and adults for that matter) change their cultural, religious and other identity as they go along. Is each new identity to be assessed according to its age, how deeply held it is by the particular pupil and some other criterion or criteria?

Moreover, some practices - cultural or whatever - are contrary to principles of liberty, equality and other values, and will end up being banned, causing accusations of inconsistency concerning what is permitted. This was in fact something the school had in mind in SG’s case since it associated cornrows with the gang culture it was trying hard to eradicate (comments below other articles on the case indicate that that was a controversial association to say the least). Collins J dismissed the idea of a would-be skinhead using the decision as a precedent, but not all traditions of shaving heads belong to far-right lunatics, so we might expect problems of consistency at least.

Perhaps the simplest solution would be for schools all to loosen their policies to the point where almost nothing is prohibited – but immediately some pupils will start wearing and displaying things others find offensive, leading to more governors’ meetings and litigation anyway.

Perhaps instead, then, schools should be given freedom to determine policies and adjudicate exceptions themselves, within a very broad framework indeed, and anyone who disagrees with a particular policy can either (i) choose a new school, or (ii) perhaps consider that it is not always a matter for regret that pupils have restrictions that adults do not.

Friday, 17 June 2011

Religion and the law once more: the circumcision debate

Published in Halsbury's Law Exchange here

In San Francisco an attempt is presently being made to ban the practice of male circumcision. The movement has sparked a debate in this country, with Neil Howard and Rebecca Steinfeld arguing that it should be banned and Adam Wagner countering that a ban would amount to a disproportionate interference with freedom of religion.

In my view the key lies in the correct analysis of the issue.

Howard and Steinfeld make the point that female genital mutilation is banned and therefore, as an act of equality, male circumcision should be as well. The point is not so straightforward, because male and female genitalia, to state the extremely obvious, are not the same thing. Some more analysis is required.

Wagner approaches the question on the basis of the religious rights of the parents, which in legal terms are governed by art 9 of the European Convention on Human Rights. As set out in R (on the application of Bashir) v Independent Adjudicator and others [2011] NLJ 812, the application of art 9 involves three questions:

(i) whether the claimant’s rights under art 9 are engaged;

(ii) if so, whether there has been an interference with those rights;

(iii) if so, whether the interference is one that is both prescribed by law or necessary in the interests of public order, health or morals, and proportionate to the end pursued.

There is little doubt that a ban on circumcision would produce an affirmative answer to the first two questions. Assuming that the ban derived from an Act of Parliament it would obviously be prescribed by law. The question would then be whether it was necessary in the interest of public health or morals, and proportionate to that end.

Wagner argues that the answer is no: he does not accept that the medical evidence conclusively establishes that a ban is justified on health grounds. That being so, there would also be scope for disagreement as to whether the ban was proportionate, because circumcision is a firmly established tradition in several religions and a large number of adherents to those religions could be expected to react strongly to a ban.

Thus, on art 9 grounds, it is certainly arguable that parents should have the right to carry out the procedure.

In response I would argue that the art 9 analysis is inappropriate. This is because the religious rights of the parents are one thing, but of overriding importance are the rights of the child. The UN Convention on the Rights of the Child makes clear that the best interests of the children should be the overriding principle whenever children’s lives intersect with the law, and in my view that principle is indisputable.

The blunt fact is that circumcision not done on compelling medical grounds constitutes an assault. The onus is therefore on those wishing to carry out the procedure to show that it is nevertheless somehow in the child’s interest.

It is not possible to justify assaulting a child on the ground that the parents’ religion requires it – any more than the state should permit parents to withdraw female children from school on the ground that their culture or religion objects to girls becoming educated.

Imagine a strange cult that required children to be branded a la cattle farming with a red hot poker, or some other bizarre practice. No art 9 grounds would permit this. That circumcision might be seen as less extreme (or not) does not change the principle. Here is where the gender equality argument becomes relevant: the only difference between male and female circumcision is that the latter is banned because the harm is greater, but that is not a sufficient distinction – there is no “acceptable level of harm”.

One red herring needs to be dealt with. Smacking a child (controversial enough in itself) is an assault. But the argument in favour of doing so is that it is in the child’s interest to learn discipline. No comparable argument for circumcision exists other than medical grounds. It is not enough to say that it does not harm the child, it has to have a tangible positive benefit. If it does, then circumcision is indeed justifiable and I would abandon any objection.

The fact that male circumcision is a deeply held tradition that has lasted for thousands of years is relevant but not compelling. Slavery, sexism, blood sports and any number of other now banned and thoroughly discredited practices, cultures and beliefs could have been (and often were) defended on the same grounds.

Ultimately, practicing religion should be subject to the same standards as non-religious activities. There would be no acceptable justification for assaulting a child on secular grounds; religious practices should be held to the same standard.

One final point. See here for a superb judicial response to sexism in religion in the present context.

Monday, 13 June 2011

The need for diversity on the Supreme Court

Shortened version published on Halsbury's Law Exchange here


The question of appointments to the Supreme Court continues to generate controversy across the legal blogsophere, and now the House of Lords Constitutional Committee has decided to launch an inquiry into judicial appointments generally.

In a previous post, I have argued that a final vetting stage of candidates for the Supreme Court should be carried out by a cross-party Parliamentary committee, as a way of a more open process with some democratic imprimatur and an affirmation of the status of Parliament as supreme in our constitutional arrangements. It should, however, be no more than a final vetting.

I have also argued that the court should continue as a general appeal court, rather than refashioning itself as some sort of constitutional court or local version of Strasbourg. I would add that I do not see how the court has the power to do so. There is nothing in the Court’s founding statute (the Constitutional Reform Act 2005) limiting the right of appeal and any suggestion that the court should only hear certain cases would amount to an unlawful fetter on its discretion.

Of course, the court could do so de facto simply by refusing permission to appeal for anything other than public law cases, but to exclude valid appeals simply because of their subject matter would deprive litigants of access to justice. The Court of Appeal deservedly has an outstanding international reputation, but the sheer volume of cases it hears means that inevitably there will be some cases where further review by the Supreme Court will be justified.

The issue on which I have not yet commented concerns the controversial question of diversity on the bench.

Three caveats

It is often said that the judiciary is unrepresentative of society, and its legitimacy suffers as a result, hence the composition should be changed whatever the appointments process.

I would agree with that proposition, with three caveats. The first is that, despite the large number of public law cases heard nowadays, it is not the role of the judiciary to "represent" the community, or a particular constituency thereof. The role of the court is to resolve disputes before it according to the law.

Of course the judges are involved in making law, but they do so subject to Parliament, which remains supreme in our constitutional arrangements.

They are also involved in evaluating questions of policy, but in doing so they are not in the position of a political party attempting to implement a manifesto. Rather, their role is limited to assessing the particular policy against the legal parameters of Wednesbury review and the European Convention, taking account of domestic case law and that of Strasbourg.

Secondly, however representative the bench becomes, it is inevitable that each individual judge will spend most of his or her time hearing cases the facts of which are largely outwith his or her personal experience. Even if it were otherwise, it would lead to accusations of bias if judges were always assigned to particular cases because they happened to share the background of one of the parties. There would be no point in multiple judges hearing appeals if they were always expected to defer to the one who was the expert on the particular subject matter or who was thought to have particular awareness of the litigants’ social group however defined.

Thirdly, resolving cases always involves a great deal of technical legal knowledge. This necessarily narrows the field for judicial selection to suitably qualified and experienced lawyers.

In other words, judges are not equivalent to politicians and therefore should not be appointed on the same basis.

The case for diversity

Those caveats aside, the justification for a more representative bench may be stated fairly simply. British society is far more diverse culturally than historically, and old notions about deference and class distinctions have long been discredited. If the judiciary remains as homogenous as it has been in the past - that is, dominated by elderly white middle-and-upper class, public school and Oxbridge males – it will have the appearance of a self-serving elite, however radical the actual decisions judges make. It will suffer the objection that the members are "out of touch"; and wider issues about social mobility will be (as indeed they presently are) engaged.

An homogenous bench will also suggest bias or discrimination in the selection process. Even if the judges are appointed purely on merit – defined as the best legal ability – if the pool of experienced lawyers from which they are drawn is itself unrepresentative, then the question arises of barriers to entry to (and promotion within) the profession, and prior to that university selection and the education system generally. (Needless to say those are much wider questions than simply the appointment process to the Supreme Court or the bench as a whole, and I won’t attempt any exposition here.)

Statistically it would be implausible to say the least for all the best lawyers to be from one small demographic, so it may be seen as advancing – not retarding – the search for the best judges to look to a more diverse pool.

Moreover, on appellate courts the virtue of having more than one judge may be partially vitiated if all are drawn from identical backgrounds. Alexander Horne’s important recent study expands upon this point (at Pt 5.2). In corporate newspeak this is known as the danger of "groupthink". (See Rackley, E. What a difference difference makes: gendered harms and judicial diversity, International Journal of the Legal Profession, Volume 15, Issue 1 & 2 March 2008, and generally Horne Pts 5.3 and 5.4).

This extends beyond the demographics of the bench, to include their professional experience. Lord Pannick QC said of a well-known public law case (YL v Birmingham City Council [2007] UKHL 2):

With three Chancery judges (Lord Scott, Lord Mance and Lord Neuberger) outvoting Lord Bingham and Baroness Hale, the House of Lords decided on the meaning and application of s.6(3)(b) of the Human Rights 1998 ([2009] Judical Review 109)

Mr Horne responds: “This somewhat sneering reference to the former Chancery judges reflected the view of many in the human rights community that they should have deferred to the views of their public law orientated brethren.”

(I would interpolate that Lord Pannick, with the greatest respect, hasn't done his homework on that particular case: Lord Mance was a judge of the Commercial Court, as was Lord Bingham.) True one might expect a judge whose practice concerned exclusively commercial cases might take a different view of public law cases than, say, a former tax lawyer, or human rights lawyer, or indeed family lawyer, but then again two of the leading human rights judges of recent years have been Lords Hoffmann and Bingham, formerly of the Chancery Division and Commercial Court respectively. This shows again that judges do not necessarily conform to expectations or stereotypes once appointed, and it reinforces the futility of trying to elicit judges’ political views before appointing them.

In other words, one should have a diverse bench, and expect a diversity of views accordingly, but predicting how that diversity will play out in practice is not really possible.


The need for a more representative judiciary is manifest. I would caution, however, that it still needs to be confined to meritorious candidates, meaning those with the appropriate skills (including black letter law, which is a technical expertise) and experience. “Political” appointees would be a disaster for the reputation of the judiciary: it would set back the cause of equality no end if someone was appointed and thought simply to be a beneficiary of tokenism. Commercial confidence in the judiciary would drop and overseas litigants and businesspeople would look elsewhere.

It follows that the lack of diversity cannot be remedied overnight. In the case of the Supreme Court, however, as I have argued elsewhere, a wider pool might be appropriate given that the judges do not need expertise in fact finding (and hence cross-examination) or procedural law, both of which are central parts of the lower courts' role. A precedent has already been set with Jonathan Sumption QC who, whilst not of any recognisable minority himself, was appointed straight from the bar (albeit not without some controversy, it has to be said). Senior lawyers from academia, business, the civil service and elsewhere might also be considered.

Friday, 10 June 2011

Injunctions: almost time for a dry martini

Published in Halsbury's Law Exchange here

Fred Goodwin has been back in court (Goodwin v NGN Ltd [2011] All ER (D) 45 (Jun)). The injunction concerning a relationship he had with a former colleague has been varied to permit disclosure of the job description of the lady in question, but not disclosure of her name.

Mr Justice Tugenhadt had this to say about the publicity which the case has received in the past three months:

"On many occasions since 1 March people have commented publicly on the case, criticising the injunction in the pages of newspapers and elsewhere. Much of this reporting contained many factual errors about the case, as I have noted above. Judges read newspapers, but judges cannot vary court orders on the basis of what the public are told by the media. If persons affected by a court order want it to be varied, they must make an application to the court. As appears from the events of 19 May, they can do this quickly and informally, if it is urgent.

English law develops in two ways. First, it is made by Parliament. The Prevention from Harassment Act 1998 and the Human Rights Act 1997 are two privacy statutes referred to in this judgment. Second it is developed by case law, as judges apply the statute to particular cases. At the second stage it is essential that the parties to litigation put their evidence and submissions before the court. It is by weighing up arguments and counter arguments that judges are best able to interpret the law. The circumstances of injunctions applied for out of hours on the telephone are not favourable to a considered development of the law. That is one reason why judges order cases to come back before the court for full consideration on the evidence. That happened on 4 March. But there was no argument then because NGN chose not to argue its case. And other media organisation notified of the injunction chose not to argue the case in court. To the extent that media defendants choose not to submit evidence and argument to the courts, judges will find it difficult to develop the law of privacy to meet the needs of society."

I think that constitutes at least a short stint on the legal naughty step for a few of the media organisations involved.

No doubt the case will be read with interest by all who attended the excellent privacy conference held by Weber Shandwick at Gray’s Inn on 8 June. During the discussion the point was again raised that privacy law may well end up being a castle built on sand, given that the internet may simply render injunctions unenforceable.

I have made this point before and it seems from comments on the UKHR blog that some people see it as a triumphant act of civil disobedience. While I agree that the privacy laws take too little account of freedom of expression – indeed significantly too little – I am not so sure that there are not other options available to those who wish to have them changed which do not involve breaking the law. Also, if it becomes the norm for injunctions to be obliterated by the determined twitterati then it will not be long before real harm is done to a deserving claimant rather than an indulgent miscreant footballer or z-list celebrity; if so the civil disobeyers might remember the old adage about being careful what you wish for.

Having said that, of course, it only takes a few to breach every injunction to render them all futile. If so there is no point in judges, politicians or anyone else arguing about the rule of law; they will have to throw the towel in, rather as American legislators felt compelled to do when ending prohibition.

Legend has it that FDR just happened to have the ingredients for a martini to hand when he signed the 21st amendment, having enjoyed a beer shortly after the Cullen-Harrison Act came into force. I wonder what equivalent might be available to a judge who feels compelled in the future to run up the white flag on judicially-developed privacy laws.

Friday, 3 June 2011

"We don't do God": religion in the public domain

Published in Halsbury's Law Exchange here

In Tom Wolfe's classic novel The Bonfire of the Vanities there is a very funny passage that will chime with anyone who has seen one of the more colourful litigants in person in action. In Manhattan, a most unfortunate character named Herbert Cantrell is on trial for manslaughter. Herbert has renamed himself "Herbert 92X" pursuant to his religious beliefs, although the sincerity of those beliefs is open to question. He is represented but his lawyer is so hapless, and Herbert so vociferous, that Herbert spends most of the time addressing the court in person. He insists on beginning each day in court with a reading from the Koran, and the judge, an irascible sort named Mike Kovitsky, allows this to happen to let the volatile Herbert let off steam and thus save time in the long run.

One day Herbert feels that he has been short-changed by the time allotted to his reading, and demands the right to continue. Kovitsky snarls that “We happen to live in a republic, and in this republic there is a separation of church and state”. In response Herbert triumphantly tells the judge to look behind himself, where emblazoned on the wall of the court are the words "In God We Trust". The court dissolves into fits of ill-restrained giggles; with the exception of Kovitsky, who explodes into rage, although he finds time to compliment Herbert for being so observant.

Such occasional religious references appear in various places in American public life in reality too, and according to this report from the UK Supreme Court blog the US Supreme Court has just refused to consider a challenge to the use of the words “So help me God” in the Presidential inauguration ceremony.

The case was brought by one Michael Newdow, a private individual. A few years previously Newdow had brought proceedings seeking to exclude the words “under God” during the Pledge of Allegiance in his daughter’s classroom each morning. That case ultimately failed on the ground that Newdow lacked standing to raise the issue on behalf of his daughter.

His later action initially sought an injunction to prevent the Chief Justice, John Roberts, from reciting the optional religious wording during President Obama’s ceremony in January 2009. He alleged that the wording violated the Constitution and infringed his freedom of religion (referring to the First Amendment’s establishment clause). The relief sought was later amended to include future inaugurations as well.

The case failed on the ground that the plaintiffs lacked appropriate legal standing to bring the case. Further, according to this website,

Acting Solicitor General Neal Katyal wrote in his brief: “Because the content of the inaugural ceremony is entirely dependent on the president or president-elect’s wishes, only a judicial order running against the president or president-elect would result in the relief that [the atheists] seek. But [they] have not filed suit against the president or president-elect.”

Mr. Katyal added that the appeals court had emphasized that “a court would not have the authority to enter an injunction directly against the president in the exercise of his executive functions or against the president-elect (a private citizen) in the exercise of his personal religious beliefs.”

Leaving aside the technical legal and procedural points about standing, the case throws up an interesting question: is the President, or any other public official, merely expressing a personal view – protected by the right to freedom of speech and freedom of religion – or bringing religion into the public sphere where it should not be permitted because of the separation of church and state?

Other questions immediately present themselves too: what if the official has campaigned during the election partly on his or her religious faith? Is there a difference if she is appointed rather than elected, so that no democratic imprimatur can be claimed for her beliefs? Does it matter if the role is a narrow, technical one in respect of which religious beliefs can be seen to be irrelevant, as opposed to one with a broad scope such as that of president?

It seems to me that Mr Katyal’s reasoning is sound: the candidate should be entitled to make religious references in his or her speech, but only as an expression of personal faith.

Any public role should be required by law to be conducted without fear or favour towards all citizens, including all religious groups, which should effectively preclude any favouritism or other improper action, religiously motivated or otherwise.

That being so, expressions of private belief in public ceremonies should be unobjectionable. Indeed, it would be more honest for a public figure to be open about his or her beliefs if there is any suspicion that they have a role in his or her decision-making, as was inferred in relation to Tony Blair, for example.

On the other hand, it also follows that there should not be a compulsory religious element in public events, for that would be contrary to a separation of church and state and the requirement for the state to be neutral as between competing religions (and non-religious belief systems). In America this is easy to enforce legally because of the establishment clause. In Britain, however, it runs directly counter to the status of the Church of England. One suspects that if Mr Clegg’s constitutional reform effort gains the sort of momentum that it has so far lacked, that status may soon be within his sights.