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

- Adam Wagner, UK Human Rights Blog

Thursday, 23 February 2012

Old Number One or New Number One?

I have been published in this week's New Law Journal, vol 162, 24 February 2012, p302, on the case of the vintage Bentley.

Monday, 20 February 2012

Same-sex marriage again

For Halsbury's Law Exchange

Last year the Scottish government began a consultation process asking if marriage in Scotland should be allowed for gay people through a civil or religious ceremony. The strength of opposing feelings on the issue is hinted at by the fact that on Valentine’s Day more than 1,000 people marched through Edinburgh in favour of the idea, whereas last year a pressure group calling itself “Scotland For Marriage” held a rally outside the Scottish Parliament to protest against it.

The issue has also been debated recently in Australia. Meanwhile the Nigerian government has not simply banned same-sex marriage, it has actually made the idea a criminal offence, with a penalty of 14 years’ imprisonment for any person who enters into a same-sex marriage contract or civil union. Apparently even that law was thought insufficient, and a separate offence was therefore passed which made “witness[ing], abet[ting] or aid[ing] the solemnization of same-sex-marriage” punishable by up to 10 years’ imprisonment.

It remains the case in the United Kingdom under s 11(c) of the Matrimonial Causes Act 1973 that a marriage can be entered into only by a male and a female, but there have been significant developments over the past decade or so.

The first was the passage of the Human Rights Act 1998. Article 12 of the European Convention on Human Rights provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

Article 12 does not settle the issue because the European Court of Human Rights has decided (in Schalk and Kopf v. Austria) that it is a matter for national authorities to decide whether to allow same-sex marriage. The court’s reasoning was based in part on the fact that there was no consensus across member states on the issue (some, such as Spain, already allow same-sex marriages, but others do not).

More significant in the UK was the passing of the Civil Partnership Act 2004, which allowed same-sex couples to enter into a union conferring the same legal rights as marriage in the area of wills, tax and so on. Interestingly, the right to enter into civil unions was restricted to same-sex couples, even though the form of partnership – legal rights with no religious implications – might equally appeal to some heterosexual couples.

The next step was the lifting the restriction on conducting civil partnerships on religious premises by an amendment to the Equality Act 2010 – though (at least at present) no religious institution can be compelled to conduct them.

The remaining question is of course the most emotive of all: whether same-sex marriage will be recognised in law, and if so, whether that step will be taken (and supported) by Parliament or by the courts.

It is next to impossible to imagine that the courts will find a right to same-sex marriage in any existing domestic statute, and given that the European Court of Human Rights explicitly refused to find such a right in the Convention, that option will not be taken by the domestic courts either. Even if the courts did take the step themselves, if Parliament disagreed it could either refuse to recognise the court’s ruling (if it came from Europe) or legislate to overrule it (if it came from a domestic court).

Realistically therefore the only way a change will come about will be by an amendment by Parliament to the 1973 Act. One would expect the robust debate in Scotland to be mirrored in the rest of the country before any such step is taken.

In previous articles on the subject I have suggested a possible solution along the lines of France, 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.

The well known American lawyer Alan Dershowitz advanced a similar view a few years ago, going one step further by arguing that the state should only confer civil partnerships, and leave the dispensing of the word “marriage” to the free market.

Either 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.

No doubt many will disagree, but in response I would simply say that removing state control of the issue would leave it to the marketplace of ideas.

Monday, 13 February 2012

Free speech and street preaching

Published on Halsbury's Law Exchange here

The limits of free speech and freedom of religion are presently on trial once again with the reported prosecution of a Christian street preacher, Michael Overd, in the Magistrates’ Court. The case arises out of threatening remarks Mr Overd allegedly made in public to a homosexual couple.

The trial brings to mind a similar prosecution from earlier this century, of the street preacher Harry Hammond. I wrote about the trial for Criminal Law & Justice Weekly (vol 175, September 10 2011, p 527), and this blog is substantially based on that article.

I am insufficiently familiar with the facts of the Overd case to comment on its merits, and to do so would be inappropriate before the conclusion of the trial in any event. My comments are therefore in relation to Hammond’s case only (which was on related but not identical issues), and are not to be taken as agitating for a verdict either way with Overd’s.

Hammond was an Evangelical Christian who had been a street preacher for 20 years. The Justices described him as “a sincere man with deeply held religious beliefs and a desire to convert others to his way of thinking.” During the summer of 2001 he had a large double sided sign made bearing the words: ‘Stop Immorality’, ‘Stop Homosexuality’ and ‘Stop Lesbianism’ on each side and attached to a pole.

Prior to 13 October 2001, Hammond had on at least one previous occasion preached whilst displaying the sign and had received a hostile reaction from members of the public, some of whom attempted to deface the sign and leading to one person trying to set it on fire.

During the afternoon of Saturday 13 October 2001, Hammond travelled by bus to Bournemouth to preach with the sign. During the bus journey he covered the sign with a black plastic bin liner as he believed the sign might cause a fracas if displayed inside the bus, because of the reaction he had previously received.

On arriving at Bournemouth town centre, he positioned himself in a pedestrianised area and began preaching, holding the sign upright so that it was clearly visible to passers-by.

A group of 30 to 40 people gathered around him, arguing and shouting; some people in the crowd were angry, others were aggressive or distressed; some threw soil at him and one person was hit over the head with the placard.

At one point someone tried to pull the placard away from Hammond, during which he fell backwards to the ground. He got up again and continued with his preaching displaying the sign, whereupon a member of the public poured water over his head.

The police arrived and asked him to take the sign down and leave the area. He refused. Despite the fact that he seems to have been more on the receiving end of the violence, Hammond was arrested and charged with an offence under s 5 of the Public Order Act 1986. He was convicted, and then appealed by way of case stated to the Divisional Court. Sadly he died before the appeal could be heard, but the court went ahead in any event.

The court ruled that it was necessary for the prosecution to prove that the sign which Hammond was displaying was threatening, abusive or insulting and that it was within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. It was a defence for Hammond to prove that, nevertheless, his conduct was reasonable.

The court concluded, not without hesitation, that the conviction should stand. It held that (i) the words on the sign were capable of being held to be insulting, not least because they appeared to relate homosexuality and lesbianism to immorality; and (ii), notwithstanding familiar free speech arguments advanced on Hammond’s behalf, it had been open to the Justices to find his conduct unreasonable.

Harry Hammond’s life and death therefore stand as part of the matrix of religion and the law, and freedom of expression generally.

Two things have been common to many cases in that matrix, including Hammond’s. First, they concern people expressing genuine and deeply held beliefs that until very recently represented mainstream opinion in this country.

Secondly, for those involving homosexuality at least, they involve the expression or manifestation of opinions that would never be tolerated if they concerned other minority traits such as race.

Thus arises the key question at the heart of liberal philosophy: how to tolerate intolerance. In the context of free speech I have long endorsed the analogy advanced by Judge Richard Posner with America’s cold war strategy. America’s front line against the USSR, he observed, was not the Potomac but the Elbe. It was hoped that any conflict would be safely away from American soil, meaning ground could be ceded here and there without threatening their core interests.

Similarly, advocates of free speech argue for a wider protection than that strictly necessary to preserve values such as open and free political discussion, artistic freedom and personal fulfillment. They spend their time defending often offensive, sadistic, sordid or nonsensical manifestations of speech. By doing so they calculate that speech that is merely offensive, or indeed simply not finding favour with the political agenda of the government of the day, is never threatened.

Peter Tatchell, the inveterate homosexual rights campaigner, advanced a similar view when commenting on Hammond’s case at the time of the original conviction:

“Criminalising prejudiced opinions is a step too far. Where do you draw the line between legitimate robust criticism and illegitimate rank prejudice? The only circumstance where there is a clearly valid case for limiting freedom of speech is when it involves inciting violence”

No-one would have known better than Mr Tatchell that only a few years before it would have been gay rights campaigners like himself who were getting assaulted in town squares by angry crowds.

He would also have known that it was hardly likely, to put it mildly, that any passer-by would suddenly undergo a radical and irreversible change in their beliefs simply after seeing and hearing the sermons of Mr Hammond. I have seen many a street preacher but never an audience for one.

As much as I deplore homophobia, I remain uneasy with Harry Hammond being made a criminal, for two reasons. First, he was expressing a political or religious or moral viewpoint, and freedom of speech, if it is to mean anything, has to include freedom to make offensive speech on such issues (no-one is likely to complain about inoffensive speech, which accordingly is unlikely to have its freedom curtailed). The proper response for anyone who disagreed was more speech, pointing out the flaws in his arguments.

Secondly, Mr Hammond by all accounts was otherwise a law abiding citizen, who simply outlived the mores of his time. I doubt all of us will be wholly immune from the same fate.