Children’s welfare and genetic screening

 Introduction 

The science of genetics and genetic engineering has given rise to complex and problematic ethical issues from its beginning.  Infamously, pseudo-scientific gobbledegook in the form of phrenology was peddled in the nineteenth century to try and explain criminal behaviour. Even more infamously, pseudo-scientists attempted in the early twentieth century to use genetics to advance theories about racial differences.

In both cases the theories offered were subsequently discredited fairly easily on scientific grounds, without even needing to question the ethics or motivations of their proponents. Far from removing the ethical questions with genetic technology, however, just as many serious moral and ethical philosophical questions continue to arise with legitimate scientific advancement.

One example is that of genetic screening of embryos and people to detect potential diseases or other conditions.  On one episode of the BBC’s Moral Maze the question arose as to whether parents could or should screen embryos before IVF treatment and what might follow from that.  A representative of the deaf community opined that if both parents were deaf, they might wish to choose the embryo that would produce a deaf child, since they would be able to relate to the child better. This runs counter to what I imagine would be most people’s instinctive reaction – that an embryo should be chosen that would be the most ‘able-bodied’ to use a contentious description.  And yet the argument from the deaf parents’ perspective was a cogent one: life for a deaf person may be equally fulfilling and certainly is equally worthy of respect as for someone who can hear, and therefore the parents should not be denied their choice. 

On the other hand, suppose the parental choice is based on cultural norms that offend that of the majority: some London hospitals ceased telling parents the sex of unborn children because it was noticed that within some communities a disproportionate number of children born were male, and on further investigation it was found that abortions of female foetuses were commonplace. Here is a classic dilemma for a multicultural society: given that abortion is legal, did the state have the right to prevent parents from following a cultural preference for male children? (In my view: yes).

The case

Another question arose recently in the case of X County Council v a mother and others [2013] EWHC 953 (Fam), [2013] All ER (D) 231 (Apr). The case concerned two young boys (aged one and three) taken into the care of a local authority, with the intention that they would be adopted.  The father, as well as admitting violence in the home, said that both his mother and brother suffered from Huntingdon’s disease (HD).  There was a chance therefore that the children had inherited the gene, and the question arose as to whether they should be screened to confirm the question either way.

Huntingdon’s disease is a hereditary disorder of the central nervous system caused by a defective gene on chromosome IV.  The faulty gene causes damage of the nerve cells and areas of the brain.  Anyone whose parent has the disease is born with a 50% chance of inheriting the gene.  Anyone who does inherit the gene will develop the disease at some stage.  The symptoms usually arise between the ages of 30 and 50, though they may do so earlier.  The extent of the symptoms varies from person to person.  In the later states of the disease the physical and mental disabilities may become profound and, if so, the sufferer will require extensive care and support.

  

The local authority took the view that the children should be screened to see whether they had the gene or not, and applied to the court accordingly.  There was no dispute that the power of the court to order a medical or psychiatric examination or other assessment under ss 38(6) to (8) of the Children Act 1989 included screening for HD. It would of course only make such an order if it thought it was in the interest of the boys’ welfare. 

The judgment 

Baker J considered evidence from the social worker concerning the prospects of adoption; the evidence that there was that other members of the boys’ family suffered from HD; and the expert evidence obtained by the parties about HD. 

He recorded the principal arguments in favour of testing as follows. First, and most importantly, a decision not to direct genetic testing would reduce the number of prospective adopters for the boys - though it would not be impossible. The guardian considered that it was possible to find adoptive placements for both boys and that accorded with this court's experience. Many children with profound disabilities were successfully adopted. Nevertheless, it would be significantly more difficult to find adoptive placements and that was a factor that pointed in favour of authorising the genetic testing. Furthermore, his lordship felt that there was considerable force in the argument that matching children with adopters who were fully informed about the children afforded the best opportunity for a successful placement.

There were other factors in favour of authorising testing. As a general rule, all children had a right to be brought up with knowledge of their background and inheritance. Unless and until testing was done, there would always be uncertainty which would affect the children's carers and in due course the children themselves.

On the other hand, there were a number of cogent arguments against carrying out testing.

First, it was the general practice not to provide genetic testing to children to determine whether they had a condition whose onset occurred in mid-adult life where there was no treatment which could be provided in childhood. It was generally recognised that it was contrary to the interests of the patient for testing to be carried out under the age of 18.

Secondly, it was undesirable to treat children differently simply because they were being considered for adoption. Save in exceptional circumstances, all other children would be given the opportunity to decide for themselves when they were older whether or not they should have the test. To order testing of the children in the instant case at the present stage would deny them the right to make their own decision when they were older.

Thirdly, though difficult, finding an adoptive placement if there was an unresolved possibility that the boys might carry the HD gene, would not be impossible.

Finally, when children had been removed permanently from their birth family, it was important, if possible, that they be placed permanently together. There was a significantly greater risk that one boy will be found to carry the gene and the other not. In those circumstances, there was, on the basis of the local authority's plans, a significant prospect that the children would ultimately be separated. That should be avoided if possible.

Baker J therefore concluded that it was not in the welfare interests of the boys for the court to order testing.

Comment 

I have to say I think the decision was correct. There was a real risk that the siblings might be separated if one was found to carry the HD gene and the other not. 

Moreover, as Baker J said, screening would not normally be allowed for children living with their birth parents.  For reasons of individual autonomy, it would be held that the children should be entitled to decide from themselves once they became adult (or at least Gillick-competent) whether they wished to be screened.  That right should not be denied children just because they happen to be on the list for adoption.  This, to my mind, is the strongest argument, though Rosalind English on the UK Human Rights Blog disagrees. She argues:

Should more weight not have been attached to the local authority’s case that, from a welfare perspective, whatever the psychological consequences of testing, they were outweighed by the likelihood that an unknown diagnosis will significantly decrease the chances of a successful adoption? (…)

Of course there are adopters who cope with children with profound disabilities and reduced life expectancy. But these heroic people are much more likely to be found than to tip up by chance. It is not sufficient – as the expert argued in this case – simply to educate prospective adopters about the disorder and in particular how today’s research is leading to the possibility of treatment in the future, without giving them the opportunity to know whether this information is going to apply to their immediate family situation; why else would they be interested? Had this case not involved two children, with the potential for being separated as a result of the discovery that one carried the gene and the other not, it is highly likely that the court would have allowed the predictive testing to go ahead.

Nevertheless, I still think it would have been wrong in the present case to undertake the screening. Imagine if, in future, a complete disease/condition screen could be done of all children.  Would that not render children waiting for adoption to be formed effectively into a queue, with the least fortune genetic inheritors inevitably forced to the back?  It seems to undermine the whole ethos of being a parent if one’s attitude towards one’s children (adopted or natural) is conditional upon that child’s genetic good fortune, though an interesting question would arise if the authority knew that the children carried the HD gene (or anything similar) and sought to withhold it from prospective adopters. 

But let no-one assume that this is the last word on the case - still less the last time extremely difficult ethical questions will arise more generally as a result of advancing genetic science. 

Free speech on holiday

I am presently on holiday overseas.  So too, it would seem, is the concept of free speech in Britain.  The UK Human Rights Blog has an interesting post (I am afraid I won't be able to put in direct links at the moment, it is too time-consuming on the mobile device I am using) has a post on Core Issues Trust v TFL [2013] EWHC 651 (Admin).  The High Court ruled that TFL had not acted unlawfully by banning an advertisement from the side of London buses which was to have read "Not Gay! Ex-Gay, Post Gay and Proud. Get over it!".  Although it had handled the decision making process badly (suggesting a traditional JR challenge might have succeeded), the decision itself was not unlawful or in breach of the human rights of the claimant (CIT).

The background is that a while ago a similar ad had been run by a gay rights group, Stonewall, which had read "Some people are gay. Get over it!"

The UKHR post sets out the detail, which need not be repeated here.  I simply want to add an observation or two (note, based entirely on the UKHR post).  The judge seems to have held that although CIT's right to freedom of expression had been engaged - which plainly it must have been - TFL's decision was a justified and proportionate restriction on that right.  The reason is that the restriction was in furtherance of the legitimate aim of protecting the "rights of others".

We will come back to that in a moment.  But, extraordinarily, the court also held that Art 9 - freedom of religion - was not engaged, because CIT "was not an individual, religious community or church". This seems to me to be a finding of convenience. It seems obvious that CIT was established by its founders as a vehicle for promoting their religious beliefs.  Equally obviously, the bus advertisements were propounding one of those beliefs.  To pretend that those beliefs do not have to be considered because of the corporate structure that the holders chose is a cop-out, designed to ensure that the judge did not have to consider the awkward prospect of how far the right to manifest religious beliefs might extend.

And here is the nub.  Stonewall was entitled to express its beliefs on the side of the bus.  CIT was not.  CIT was not because it was felt that its beliefs would have undesirable consequences in the form of homophobia.  But CIT would doubtless respond that according to its beliefs (wrong headed as some including myself would think) it is homosexuality that is wrong, that the mainstream scientific and social acceptance of homsosexuality is incorrect, and therefore it is Stonewall's beliefs that would have undesirable consequences.

Who is right?  Most people nowadays would say Stonewall.  But that is not what free speech is about.  Had free speech meant banning anything contrary to the prevailing viewpoint about desirable consequences then the Stonewall movement would never have gotten off the ground.  Peter Tatchel, the well known gay rights campaigner, understands this well and has often articulated similar thoughts.

In my view London buses aren't really the place for debates about social, political or religious issues and therefore TFL should have had a policy banning all such messages.  But that is only my opinion, and not one I hold particularly strongly anyway (being happy not to pay attention to them, and not have to debate the scope of what is political and what is not).  The fact is that once TFL decided to allow Stonewall to run its campaign (and indeed the "atheist" bus ads) then its role as a public body was not to take sides and to allow counterpoints.

A free press

There are some disturbing developments in the field of free speech around the world at the moment, all of which resonate particularly in the United Kingdom given the debate over a Royal Charter or possible statutory regulation of the press.

There are two points here: a general one about the nature of state control and a more particular one regarding free speech.

As to the first, fundamental rights and freedoms cease to be fundamental once the state gets the idea that they are just another part of its responsibilities and can accordingly be tinkered with at will.  This is why the executive is always pressuring to subsume management of the courts, the judiciary and the entire criminal justice process within another monolithic state emanation such as the Ministry of Justice.  Once that happens, then the rule of law becomes an optional extra, subject as with everything else to bugetary constraints and the overriding need to ensure the incumbent government gets re-elected. If the state gets hold of the press, then we can expect a steady if stealthy erosion of the freedom of the press, moving towards a curtailment of anyone being warned off stories which might embarrass the executive.

As to free speech, this is a principle that can be justified broadly on two grounds. First, the "rights" based argument, which is that as part of personal autonomy we have the right to free expression, meaning the right to any political, religious or other point of view, simply as part of a free society.

The second ground is the "consequences" argument, which is that the consequences of banning speech usually turn out to be worse than not doing so.  Of course this is not always the case, which is why consequentialist arguments in favour of a free press are always up for debate. At the moment the argument is being presented that the free press we have hitherto enjoyed behaved so badly that it needs to be reined in by way of a Royal Charter or statute.

Coinciding with the debate here comes this report into the Chavez regime.

Chavez was admired by a number of British politicians, a number of whom are struggling to say anything bad about him. Here, for example, is a breezy encomium from Lord Prescott on a tabloid site. And here is a Guardian editorial which struggles to say anything negative about him at all.

The most amusing and telling comment comes from the satirical Daily Mash, which ran a spoof headline about Guardian readers paying tribute to a man who would have banned the Guardian had it been published in Venezuela.

Then comes news of this sort of thing elsewhere.

It seems one step forward with free speech, and then a lot of steps backwards, and none of it bodes well for increased regulation in this country. 

Of course people have a right to a private life, and the press has been notoriously bad in recent years about interfering with such a right.  But there are two problems. First, no-one should assume that suppressing the press instead will automatically be a better option, or even that it will be the lesser of two evils.  The fact that certain sections of the press blinded themselves to Chavez's human rights abuses because they agreed with his anti-American stance or his social programmes does not fill one with confidence.

Secondly, the public/private distinction is not an easy one to make. For example, straw polls I have conducted confirm that Mr Piers Morgan is seen as a paradigm of an irresponsible tabloid editor, and by contrast the Guardian is seen as a responsible member of what used to be called the broadsheets.  For what it is worth, I do not number myself amongst Mr Morgan’s fans.  But credit where it is due.  In this interview Morgan makes Alan Rusbridger, the editor of the Guardian, look frankly ridiculous for his hypocrisy and muddle-headedness on the issue.   Who would want either a Morgan or a Rusbridger as a putative regulator of Fleet Street?

As with any form of regulation the prior question is whether any extra laws are needed at all.  I previously wrote about Leveson:

where the press have been shown to have entered into inappropriate relations with the police, then the answer is tighter controls of police. A police officer leaking information about an inquiry is (potentially) committing a criminal offence. Indeed, the journalist might too if he or she acted in a way that prejudiced a trial. There might also be a civil remedy arising from breaches of the right to privacy, having regard to Art 8 of the European Convention on Human Rights.


The same applies with politicians and civil servants: if they are too close to journalists, or are found leaking information improperly, then they may breach codes of conduct for their respective roles or, again, face both civil and criminal proceedings depending on the circumstances.

In other words, the answer to many of the questions posed by Leveson may well be better enforcement of the existing law, not new laws or new enforcement mechanisms.

 Which remains my view today.

Executive Pay

Published in the Times on 26 February 2013.  It was the lead letter for the day.

Dear Sir,


Jane O’Nions (letter, 25 February) gives but one example of executive pay being out of all proportion to any results achieved, a trend confirmed by a report in 2011 by the High Pay Commission.

One of the chief problems is that English corporate law was largely developed in the nineteenth and early twentieth century, when companies had far smaller numbers of shareholders. Accordingly, the latter were able to provide a check on executive performance. When the largest individual shareholder of a company holds less than 1% of the shares, as is common with large multinationals today, it will be all but impossible for the shareholders to act as a group.

Successive governments have always been reluctant to act by imposing higher taxes, partly because economists dispute whether they would lead to increased revenues, and partly because executives can either find loopholes or threaten to move business offshore. Moreover, many politicians will have one eye on directorships for themselves – a consideration which also puts paid to other forms of restraining pay besides tax. This effectively leaves it to executives themselves to set the level of their own pay [and it is not hard to guess the result of placing the design of the chicken coop in the hands of the foxes].

A second blight has been the attempts of local government and other public sector bosses trying to pay themselves in line with the private sector, leading to the absurd situation of many council chiefs earning considerably more than the Prime Minister. This is something the Government should deal with[, perhaps by starting with a sealed bid procedure for senior public sector roles].

Words in square brackets omitted.

The Pryce of Juries ...

Introduction: the Pryce of justice

The dismissal of the Vicky Pryce jury has once again raised the question of whether jury trials should be modified or abandoned completely.  Needless to say it is among the most emotive of all questions regarding the criminal justice system.  It seems to me that many of the usual justifications regarding juries do not withstand scrutiny, and yet paradoxically logic may not have the last word.

Mrs Pryce is the former wife of the former MP Chris Huhne. Both were charged with perverting the course of justice after it emerged that Mrs Pryce had claimed responsibility for a speeding offence which Mr Huhne had in fact committed (he wanted her to have the three points so he could retain his licence).  Mrs Pryce pleaded not guilty and so was tried before a jury. While the jurors were considering their verdict, they submitted a list of questions to the judge.  These included: “Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it?”; and “Would religious conviction be a good enough reason for a wife feeling she had no choice … to obey?”. The latter question was asked in spite of Mrs Pryce’s religious convictions never being mentioned in the case, let alone placed in issue. 

The calibre of the questions was enough to convince the trial judge that the jury simply did not have the faintest idea what they were doing.  He therefore dismissed them and ordered a retrial.

There was a wide spectrum of reaction in both the popular and legal press. Some saw the case as an aberration; the fact that juries are dismissed so rarely was itself evidence that the system was basically sound (in over 99% of cases juries reach a verdict, according to a study of Crown Courts from 2006-2008), or reasoned that it was simply an example of the safeguards of the system working. Others seem to think it was indicative of the collapse of Western civilisation, given that 12 ordinary people taken at random from the electoral role did not have a grasp of the English language or of English institutions.  Research by the Ministry of Justice in 2010 actually tended towards the latter, as it showed some two-thirds of jurors did not fully understand the judge’s directions. Certainly, the study coupled with the Pryce saga gave valid reason to debate whether we should continue with the jury system in its present form.  It will not do simply to trot out the usual chestnuts about juries being enshrined in Magna Carta; brining independence into the courtroom; or having the value of the “ordinary person’s experience” as opposed to the extraordinary rest of us. Let us consider each of those justifications in turn.

The “historical justification”

It is often argued that we have had juries for centuries and they accordingly form a central part not simply of the criminal justice system but society generally.

An immediate qualification is required: the mention in Magna Carta of trial by one’s “peers” was certainly not a reference to “equals” in the modern sense. Instead, mediaeval juries served two primary purposes: first, to define what the law was, by reference to the norms of the local community; and secondly, to bring to bear their personal knowledge of the defendant when determining his guilt.  Both purposes were appropriate to small, undeveloped and isolated communities. Neither is appropriate today, when the law is supposed to be determined in advance by duly elected or appointed law makers, and a prerequisite for a fair trial is that none of those involved on the part of the state have personal connections to the defendant.

A modern jury is supposed to be only a fact-finding tribunal, which has to determine the weight of evidence as presented in the trial.  In this form juries date more from the time of the Glorious Revolution as opposed to 1215. 

In any event, we can dispose of the “historical justification” much more simply. The age of an institution or human practice is hardly a decisive argument in its favour: the fact that women were denied the vote until the twentieth century, for example, was not an argument against them obtaining it. Other, more substantial grounds are needed to defend the jury system.

The real world

In 2012 the experienced criminal barrister Felicity Gerry offered the following (Trial by jury: the importance of “ordinary” jurors, Halsbury’s Law Exchange, 8 February 2012):

“[J]udging their fellow man or woman, jurors bring to court their experience of real life.

I don’t know how many privileged people have had sex in an alley or taken cocaine or carried a knife for protection or, God forbid, had sex with a family member, but an understanding of real life, in all its shades, helps when considering issues in a criminal trial.”

With the greatest of respect, it is completely random how many – if any – jurors bring such experience, and it is not as though judges are completely inhuman either.  More to the point, judges in criminal trials will have spent years representing or prosecuting the worst elements of society and, far from being “out of touch”, will actually have much more insight into the lives of the average criminal than the sort of middle class married people commonly found on juries.

Moreover, if juries are there simply to determine guilt or innocence, rather than empathise with the defendant’s exotic peccadillos, then the more salty experiences they may have had should not be relevant to their task.

Independence

The next argument is that juries bring “independence” to the trial process, being the one link in the prosecutorial chain that is not in the pay of the state.  This of course ignores the basic principle of judicial independence as is now long established.  Judges nowadays have fixed salaries and security of tenure. No-one has impugned judicial independence in the civil sphere or demanded that jury trials be reintroduced for civil disputes.  Nor is it true to say that criminal proceedings are necessarily more important than civil: that might be true of murder, but the fate of, say, someone’s house or their job in a civil action will be of greater importance to them than a criminal charge from the lower levels of offences triable by juries.  

Public confidence

If the public (howsoever defined) have more confidence in jury trials, then that would form a strong justification for juries.  But is this true?  There is no suggestion of a dearth of confidence in the civil sphere, which has long dispensed with juries save for the odd exception such as libel trials.  Nor is there a serious suggestion that the Court of Appeal, Criminal Division, lacks confidence even though it regularly overturns the verdicts of juries.  Since the 1930s it has done so on the ground of the evidence not supporting the verdict (as opposed to a defect in the trial process), when allowing appeals against conviction.  In more recent times even the once-hallowed principle of double jeopardy has been abandoned.  Neither step can really be said to have eviscerated public confidence or led to a feeling that elitist judges should have no place undermining the verdict of twelve good men (or women) and true.

Moreover, trials such as that of Pryce or other well-known examples of jury failures have eroded such confidence as there is in the system.  They might be thought rare – but perhaps should not be, given the Ministry of Justice study mentioned above.

If the public has more confidence in juries because they represent the verdict of twelve as opposed to one, then statistically there is not much to bear out such an assumption. 

Then there is the question of a bulwark against injustice: someone technically guilty but attracting moral sympathy might expect to escape a conviction due to a sympathetic jury.  Such cases are few and far between, morally and legally dubious, and not much of a counterpoint to the argument that juries are fundamentally flawed in the majority of cases. They would also have to be balanced against jury decisions which the public consider blatantly wrong, which occur as often as ones in which they ape the Chancellor’s foot and deliver a popular verdict contrary to law.

Further, there are forms of trial which are manifestly unsuited to juries – complex tax or accounting fraud cases – and surely the general public would trust the verdict of an experienced Chancery judge over lay people in such cases.

Some benefits

Were juries to be abandoned one immediate benefit would ensue: much of the law of criminal evidence could be abandoned.  Substantial savings in cost and time would follow, which would mean legal aid could receive some of the money (and would go further as trials would be cheaper) and the courts would get through cases much more quickly.

Some alternatives

There are already alternatives in the justice system to simply single judges or juries.  In wet shipping cases for years elder bretheren of Trinity House have (wholly uncontroversially) sat as assessors to assist the judge. In the Employment Appeal Tribunal it is common for two lay members to sit with one judge.

Or we might look to France, where the Cour D’Assises are composed of a jury of 6 jurors and a panel of 3 active judges at first instance, and 9 jurors and 3 active judges on appeal. A similar system here (though I see no need for a jury on appeal, as we do not have one now and there is no serious call for it) would address most of the above concerns about the flaws of juries whilst preserving the public confidence which – rightly or wrongly – seems to derive from the demotic element they involve.

The other alternative would be to reform the jury system itself, by requiring some form of qualification (see here for an interesting discussion).  This certainly has a precedent, albeit not a very good one, in that until recently jurors were required to be property owners and over the age of 21.  An IQ test would be an obvious though invidious alternative; perhaps a more palatable one would be some form of written test.  There would still be all manner of problems with such a measure, however, not the least of which being that it would give an easy escape route to those who cannot be bothered with their civic duty, and we would end up with juries about as representative as Justices of the Peace have been over the years. 

Another suggestion is for juries to give written reasons for their verdict.  The chaos that would follow in the form of appeals, reviews and public outcries needs no elaboration.

I must admit to wavering somewhat on the issue. Perhaps, rather like Churchill said of democracy, we may end up concluding that juries are the worst possible system except for all the alternatives. Or perhaps it is time to grasp the nettle and make a radical change that is overdue. 

Harassment and His Holiness: Heafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701

It is as well that one Mr Heafield did not get a job in the timber yards where I worked over a couple of summers as a student. For the majority of the staff and customers the use of the “f word” was not so much bad language as a way of life. It was rare that they would manage a sentence without it, unless a female was present, in which case it would be watered down to every other sentence. I was always amused by the fact that sometimes they could use it in a sentence as a substitute for the noun, adjective and verb and yet convey their meaning perfectly.


Heafield instead worked as a casual sub-editor at the slightly more rarefied atmosphere of the Times Newspaper in London. He was there during the time of the Pope’s visit to the United Kingdom in 2010. On the evening of 12 March the newsdesk was preparing a story about allegations that the Pope had protected a paedophile priest. One of the editors in the newsroom, a Mr Wilson (no relation), shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?” When there was no response he repeated the question more loudly.

Heafield, a Roman Catholic, took offence at this. He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the employment tribunal for harassment and victimisation on the ground of his religious belief.

The definition of harassment at the time was contained in reg 5 of the Employment Equality (Religion or Belief) Regulations 2003 (since replaced by the Equality Act 2010). Regulation 5 provided:

“(1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of -

(a) violating B’s dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) Conduct shall be regarded as having the effect specified in paragraph (1)(a) or (b) only if, having regard to all the circumstances, including in particular the perception of B, it should reasonably be considered as having that effect.”

The tribunal adopted the same approach as had been followed under the Race Relations Act 1976 by the Employment Appeal Tribunal in Richmond Pharmaceuticals v Dhaliwal [2009] ICR 724:

“As a matter of formal analysis it is not difficult to break down the necessary elements of liability under section 3A. They can be expressed as three-fold:

(1) The unwanted conduct: Did the Respondent engage in unwanted conduct;

(2) The purpose or effect of that conduct: Did the conduct in question either

(a) have the purpose or,

(b) have the effect

of either (i) violating the claimant’s dignity or (ii) creating an adverse environment for her. …

(3) The grounds for the conduct. Was that conduct on the grounds of the Claimant’s race (or ethnic or national origins) ?”

The tribunal went on to hold that Wilson’s bad language was merely an expression of bad temper which might have amounted to “unwanted conduct”, but was not intended to express hostility to the Pope or Roman Catholicism. Element (1) of the test in Richmond Pharmaceuticals had therefore been established but not elements (2) or (3). Wilson had not known that Heafield was Catholic and, more to the point, there had been no anti-Catholic purpose in what he said. His use of the f-word was simply a manifestation of his stress at the time.

By a fairly tortuous route, the details of which need not concern us here, the matter ended up before the Employment Appeal Tribunal.

The Appeal Tribunal held that the employment tribunal had been plainly right in finding that, to the extent that Heathfield felt his dignity to be violated or that an adverse environment had been created, that was not a reasonable reaction. At para [10] of its judgment it stated:

What Mr Wilson said was not only not ill-intentioned or anti-Catholic or directed at the Pope or at Catholics: it was evidently not any of those things. No doubt in a perfect world he should not have used an expletive in the context of a sentence about the Pope, because it might be taken as disrespectful by a pious Catholic of tender sensibilities, but people are not perfect and sometimes use bad language thoughtlessly: a reasonable person would have understood that and made allowance for it.

The Appeal Tribunal went on to say that the facts of the present case were a good illustration of the kind of case in which the imposition of legal liabilities was undesirable and outside the scope of the legislation.

Element (2) had therefore not been satisfied and accordingly the appeal would fail without needing to consider element (3).

The case seems to me to be a victory for common sense. Far too often in different contexts courts have had to consider claims for compensation on the ground that someone has been “offended” without any more tangible loss or damage than that. One can no doubt conceive of situations in which such offence or hostility is generated that it amounts to harassment or an impossible working environment, but Heathfield’s case as presented to the employment tribunal came nowhere near.

Legend has it that during the infamous “Bodyline” cricket series between Australia and England in the early 1930s the England captain, Douglas Jardine, went to the Australian dressing room after a day’s play to complain that he had been called a “bastard” by one of the Australian team. He demanded an apology. The Australian captain turned around and shouted across the room “Alright, which one of you bastards called this bastard a bastard?”

History has not been enormously kind to Jardine, who is generally remembered as a pompous sort whose actions on and off the pitch were rarely to be admired. Mr Heafield should take note.

Publications

I have been published in the current edition of Criminal Law & Justice Weekly, vol 177, February 16 2013, p 105 on the proposed Alan Turing pardon. 

I am also published in the New Law Journal, vol 163, 22 February 2013, p 214, on the Parker-Hulme murder on which the film Heavenly Creatures was based.

Sport and the law: should performance-enhancing drugs be banned?

Following on from the Lance Armstrong scandal comes news that a major report into Australian sport has concluded that the use of performance-enhancing drugs (PEDs) is widespread throughout major events in that country. Before asking what can be done about this situation, it is worth considering whether anything needs to be. The issue of illegal drugs in general society is hotly debated in every respect – not least in the sense of whether any drugs should be illegal at all – and if anything the arguments about legalising sporting drugs are stronger. In a recent editorial in the New Zealand Law Journal ([2012] NZLJ 321), Bernard Robertson argues that objections to PEDs are rather reminiscent of the backward-looking geriatrics in Chariots of Fire complaining about professional coaches.


The primary objection to illegal drugs in society is that they harm the user and so, for paternalistic reasons, the state should ban them. In the sporting context this ignores two things. First, many PEDs are not otherwise illegal and so the state does not consider them to pose a significant enough health risk to warrant being banned.

Secondly, talk of the threat to the health of athletes ignores the fact that many sports at the highest level carry severe long-term health risks anyway. Gymnastics, for example, has well-documented risks of long-term serious back problems, as does weightlifting, or fast bowling in cricket. Then there is boxing, where brain damage is a mathematical certainty for professionals who have any sort of long-term career. In all of those cases, we leave it to the individual athletes to make the choice about how hard to train and therefore what health implications they are willing to risk. There is no principled distinction between the risks of boxing and the risks of taking PEDs; both are for the individual to judge. At most, the health risk of PEDs is an argument for athletes to be well-informed, so they may judge the trade-off between success when young and health issues when old. It is not a conclusive argument for PEDs to be banned as such.

The next objection is that PEDs give the athletes who take them an unfair advantage over those who do not. But, at the level of professional sport, many things also offer advantages to some countries and some athletes over others that no-one thinks of banning, primarily the quality of training facilities and coaching available. Some entire sports contain barriers to entry which preclude most of the world’s population from ever aspiring to compete internationally. The cost of an Olympic bicycle, for example, never mind the velodrome in which to ride it, is prohibitive for about 99% of the globe; so too rowing boats, equestrian facilities, sail boats and indeed most Olympic sports in which Great Britain tends to excel (Britain’s authorities having cleverly worked out that their great comparative wealth could enable them to invest in expensive niche sports where the number of competitors would be very few compared with cheaper events).

Unfairness, therefore, cannot by itself justify the banning of performance-enhancing drugs, or at least not without looking like an arbitrary decision compared with all the other equally unfair things currently permitted.

A related objection is that PEDs are “unsporting” in a broader sense. As Mr Robertson points out in the editorial mentioned above, this sort of objection is more than a shade redolent of the debates over amateur and professional sport in years past. For years the rugby union authorities stubbornly came out with pious utterances about money sullying the purity of sport, while they themselves pocketed salaries and bonuses as administrators quite happily. They also cheerfully ignored the fact that the concept of amateur status – the paradigmatic example of which was the distinction between Gentlemen and Players in county cricket – was originally devised as a way of keeping the working class out of sport because they could not afford the time off to practice.

There are two stronger arguments for banning PEDs. The first is that the paying public expects PEDs to be banned as “unsporting” whether there is a rational reason for it or not. Indeed, watching sport does not have to be a matter of hard logic, so reason does not have to have the last word. To the extent that there is a rational explanation, it would probably be along the lines that the natural admiration one has for great players does not exist so far as their achievements are down to PEDs as opposed to hard training or natural ability.

The second reason is that even if Britain convinces itself that PEDs should be permitted, most of the rest of the sporting world disagrees and so Britain will find itself a pariah if it legalises them. Again, the reasoned arguments for or against PEDs do not really come into it; if everyone else disagrees then Britain will have to go along with it in order to be allowed to play.

If those two points are accepted, however, it does not follow that PEDs have to be banned by the state as opposed to individual sporting authorities. The latter are better placed to judge what the public might or might not accept, and will learn swiftly by means of gate receipts if they get it wrong. It is already the case in that different substances are banned in some sports and not others. Anabolic steroids would not, one imagines, help someone play snooker, but drugs steadying nerves or sharpening senses might; the reverse would be the case for weightlifting. Individual sporting bodies cannot impose criminal sanctions but they can impose life bans and strip titles from competitors, which ought to be effective enough as a punishment. Then again, the individual sporting authorities may not (save in respect of very large and powerful ones such as in football) have the resources to police PEDs on their own.

Of course the ban on PEDs has resulted in an arms race between methods of detection and methods of evasion. Difficulties in enforcement are always cited as a reason for not banning drugs in wider society, though the point can hardly be decisive: if it was difficult to stop murder, it would not be a reason to give up trying.

As Mr Robertson cautions, allowing the state to interfere with sport is a dangerous move. We might agree with it helping sporting authorities eradicate PEDs. But it was the Communist bloc which provided the worst examples of the health of athletes being sacrificed for short term gains, and needless to say that was a result of the state believing it had a monopoly on what was best for everyone. Sport is normally, and rightly, considered a private activity constituted by a series of contracts between organisers, sponsors, players and the public; allowing the state to supervene requires caution to say the least.

Coda: an amusing legal story comes from the United States, where Mr Armstrong’s autobiography has been moved from the non-fiction sections of bookshops to the fiction sections. He is also apparently to be sued by readers who thought they were buying the former category of book and not the latter. It rather goes without saying that Mr Armstrong, though purporting to offer a true story of his career in his book, was not making some legally binding commitment in doing so. If it were otherwise, would there be a single memoir by a public figure of the past hundred years (or ever) which would not be vulnerable to the same challenge?

Bringing out the dead

I will be published in the next edition of the New Law Journal (vol 163, 8 February 2013, p 142) on the issue of digging up dead monarchs, in particular the failed effort to exhume Harold's purported remains, with a nod to the more successful (if increasingly distasteful) effort with Richard III ...

The Times goes to the legal naughty step: AI v MT [2013] EWHC 100 (Fam)

Update: this post has now also been published on the UK Human Rights Blog here.

The Times today deserves a spell on the legal naughty step.  Its headline announces that a judge's decision "opens way to divorces by Sharia". One might expect therefore to find that the judgment giving rise to the headline - the decision of Baker J in the Family Court in AI v MT [2013] EWHC 100 (Fam) - was about Sharia law, or otherwise had something to do with it.  In fact the judgment concerned a Jewish divorce under the auspices of the Beth Din, and had nothing to do with Sharia at all.

The decision

The judge approved a final order in matrimonial proceedings by consent.  That consent order had arisen from the Beth Din.  It did not elevate the Beth Din to the status of the High Court.  To the contrary, the judge stated that the following legal principles applied (paras [27]-[30]):

[27] First, insofar as the court has jurisdiction to determine issues arising out of the marriage, or concerning the welfare and upbringing of the children, that jurisdiction cannot be ousted by agreement. The parties cannot lawfully make an agreement either not to invoke the jurisdiction or to control the powers of the court where jurisdiction is invoked: see Lord Hailsham in Hyman v Hyman [1929] AC 601.


[28] Secondly, save where statute provides otherwise, when considering issues concerning the upbringing of children, it is the child's welfare that is the paramount consideration. Statute does otherwise provide in respect of applications for the summary return of children under the Hague Convention. Applications for summary return under the inherent jurisdiction, on the other hand, are to be determined by reference to the child's welfare, for the reasons explained by Baroness Hale of Richmond in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80 at paragraph 25:

"In all non-Convention cases the courts have consistently held that they must act in accordance with the welfare of the individual child. If they did decide to return the child, that is because it is in the best interests to do so not because the welfare principle has been superseded by some other consideration."

[29] Thirdly, this court gives appropriate respect to the cultural practice and religious beliefs of orthodox Jews as it does to the practices of all other cultures and faiths. But that respect does not oblige the court to depart from the welfare principle because, as explained by Baroness Hale in Re J at paragraphs 37 to 38, the welfare principle is sufficiently broad and flexible to accommodate many cultural and religious practices:

"It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed we do not have any fixed concept of what will be in the best interests of the individual child… We are not so arrogant as to think that we know best… Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well known checklist in section 1 (3) of the Children Act 1989: These include his own wishes and feelings, his physical and emotional and educational needs, and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one."

[30] Fourthly, it is always in the interests of parties to try to resolve disputes by agreement wherever possible, including disputes concerning the future of children and ancillary relief of the breakdown of a marriage. As Thorpe LJ observed in Al Khatib v Masry [2004] EWCA Civ 1353 [2005] 1 FLR 381 at paragraph 17:

"there is no case, however conflicted, which is not potentially open to successful mediation, even if mediation has not been attempted or has failed during the trial process"

In international child abduction cases, the charity Reunite, has run a highly successful mediation scheme for a number of years. It is important to add, however, that, whilst the court will encourage parties to try to resolve disputes by agreement, and will permit parties fully to participate in any process designed to achieve an agreed settlement, including where appropriate a process established by the culture or faith to which they belong or adhere, it must be careful to avoid endorsing any process that has or might have the effect of ousting the jurisdiction of the court, particularly (but not exclusively) in respect of the welfare of children.

The effect

In other words, the parties chose to resolve their differences by means of the Beth Din, but they still required the court's approval.  The court happened to approve the Beth Din's ruling as reflected in the consent order, but it is the court's order, and not the Beth Din's ruling, that has force in English law.  True, this might mean that other religious rulings might in future be recognised in the same fashion, but the court's approval is not a rubber stamp. If for whatever reason (public policy, lack of valid consent by one or both of the parties, misrepresentation, whatever) that process offended English law then the religious tribunal's decision would not be recognised and would not then attain any status in English law.  Baker J stressed that the arbitration was non-binding, and it is clear (see eg para [37]) that he examined the outcome as closely as he would have a settlement reached by any other means.


Comment

Freedom of contract is a central concept under the common law.  Arbitration - in commercial or family contexts - is but a subcategory of freedom of contract.  Parties are free to agree on dispute resolution mechanisms just as they are free to agree on anything else - within the law. In the commercial world very sophisticated arbitration processes have developed over the years within different industries - shipping, commodity trading, whatever - and London is one of the great world centres for commercial arbitration.  Thus every working day in the city tribunals constituted by grain boards or oil traders or shipowners or whatever sit, hear evidence and decide the fate of many millions of pounds.  They will attempt to apply the law of the contract, which is often English law but by no means always - a Liberian shipowner might be involved in a dispute with a New York broker and a London insurer and the contract might state that New York law applies.  The decision of the arbitrators will be enforceable in English law if the English courts approve, and it might be challenged in the English courts under various (fairly narrow in the commercial context) provisions in the Arbitration Act. 

The key point is this: if the courts recognise and allow the enforcement of an arbitration conducted under (say) New York law, that involves no importation of New York law into English law.  It is simply a manifestation of the common law doctrine of freedom of contract. The parties agreed they would resolve their dispute under X arbitration process pursuant to Y system of law, and unless there is a good reason (such as the examples given above regarding duress or other circumstances in which the parties cannot in fact be said to have "agreed" despite the face of a contractual document) there is no reason why English law would not recognise it.

Returning to the family context, the courts are more wary of straightforward enforcement of apparent agreements presented to them by consent orders, because it is rare for both parties to be sophisticated entities with independent advisers and a long history of similar transactions between them.  It will be even more cautious where the parties purport to resolve their differences according to a different religious or cultural tradition, because, contrary to the odd scaremongering headline, English law will not allow what it otherwise considers persecution to be explained away for cultural or religious reasons - despite the fact that it normally tries to respect cultural and religious differences, as per the quote from Lady Hale in In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40 above (though I should note that I have some criticims of that judgment, which can wait for another day).  Thus, two parties could agree to a divorce under Lord of the Rings' law and if there was no counterveiling reason, the courts might well agree to a consent order based on the outcome.  But, for the reasons given above, that would not pave the way for fantasy books to become part of English law.