Tony Hatfield's Retired Ramblings

Lord Carey's Intervention ver1.01

In September this year, the European Court of  Human Rights (ECtHR) will deal with  cases involving  workers dismissed for  'expressing' their Christian beliefs. According today's Daily Telegraph, Lord Carey has filed a statement in the ECtHR to support the applicants.

 Two of those trooping  to the Strasbourg Court  are Gary McFarlane and Lilian  Ladele.

McFarlane was a Christian  working for Relate. He was dismissed  because he felt 'uncomfortable' giving sex therapy to gay couples. Lilian  Ladele worked for Islington Council as a Registrar. Because of her religious beliefs  she refused to conduct civil partnership ceremonies. She was dismissed.

The Ladele case is a good starting point. It was heard by a powerful Court of Appeal. Lord Neuberger the Master of the Rolls said this 

“[I]t appears to me that the fact that Ms Ladele’s refusal to perform civil partnerships was based on her religious view of marriage could not justify the conclusion that Islington should not be allowed to implement its aim to the full, namely that all registrars should perform civil partnerships as part of its Dignity for All policy.  Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.” 

He went on the make a distinction, often forgotten when looking at Article 9 of the European Convention on Human Rights (ECHR). Article 9 guarantees freedom of thought, conscience and religion.  It offers no protection of such a belief’s content in the name only of its religious credentials. In the Ladele case, Lord Neuberger disposed of the discrimination point easily

"the Strasbourg jurisprudence on Article 9, supported the view that Ms Ladele’s desire to have her religious views respected should not be allowed “to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community”.  

Back to the McFarlane case. Lord Carey filed a statement on behalf of McFarlane.

  One of his  grumbles was that he saw the judges as unable to deal with matters of religion. 

'.....I appeal to the Lord Chief Justice to establish a specialist Panel of Judges designated to hear cases engaging religious rights.  Such Judges should have a proven sensitivity and understanding of religious issues and I would be supportive of Judges of all faiths and denominations being allocated to such a Panel.  The Judges engaged in the cases listed above should recuse themselves from further adjudication on such matters as they have made clear their lack of knowledge about the Christian faith.”

  This was dealt with speedily by the Master of the Rolls.

'They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.' 

The Court then dealt with  McFarlane's argument that he should be allowed to express his faith by refusing to counsel gays. In other words; should he be allowed to engage in discrimination? 

Imagine there was a sect of Mormonism that still believed  inter racial marriage was wrong and no members could marry outside the faith. Such a belief would certainly be protected by Secion 9 of the ECHR.

Now imagine a member of this faith was employed by Relate as a counsellor. He refused to help  mixed race couples with their sexual problems. Or one  employed by a local council as a regisrar who refused to perform marriages between mixed races?  I suspect few would have any difficulty in supporting the employer in both these cases who, after going through a lengthy dismissal procedure, sacked their employees. 

Put in these terms, and it is precisely  in these  terms the ECtHR will examine the cases in September, it's difficult to see the Strasbourg judges spending too much time on  another of Lord Cary's interventions. 

 

 

 

 

 

 

 

I'm Shocked. I Really am!

This morning, George Gideon Oliver Osborne, UK Chancellor of the Exchequer, opened a little brown envelope from HMRC. Inside was a letter containing the information that many of our wealthiest people pay virtually no tax at all.

For someone familiar with the wonderful tax avoidance vehicle of the 'offshore trust', this should have hardly come as a bolt from the blue. Yet we now learn Osborne  was 'shocked' to discover what was going on.

As you can imagine there has been much comment in the blogosphere about the Osborne reaction. But by far the best has been accompanied with that scene from Casablanca in which Captain Renault, played by Claude Rains feigns surprise when he 'discovers' gambling going on in Rick's Bar.

Here it is in all its glory 

 

The European Court of Human Rights usually gets it right?

 

 

Today, the European Court of Human Rights (ECtHR) has decided that Abu Hamza and four other alleged terrorists can be extradited for trial the the United States.  The decision is a powerful one, that could not have come as much of a shock to anyone who followed the initial hearing before the court. They were scathing of the Section 3 arguments  by the all the applicants. And today, Joshua Rozenberg's piece in today's Guardian says it all. 

Rozenberg argues that despite the often ill founded criticism of the court its judges 'do live in the real world ', though there are many of our legislators and  media who do not believe that.

The last four decisions affecting the UK do not go all one way. The Hamza  case together with the court's decision supporting  our whole life tariff, when life means life, have gone in the UK's favour.

 The cases of  the  prisoners' votes and the refusal of the court to rubber stamp the extradition to Jordan of Abu Qatada, are decisions that were  right in law.

Much of the debate about these two cases surrounds the commentators unhappiness with the UK's membership of the Council of Europe. The dissatisfied litigant normally does not have the oportunity of walking away from the court. But our membership of the  Council of Europe and of the ECtHR is voluntary. We could walk away. But like the restoration of the death penalty and our withdrawal from the EU, this is not going to happen. 

 

Jeremy Hunt's retreat - cut off.

With the latest phone hacking disclosure in the guardian, I suspect last night  the lawyers in the department of culture media and sport (dcms) were burning the midnight. jeremy hunt, the minister is now  in a position that he can only wave through the news international bid for the remaining  shares in sky they do not own.

Hunt's position is truly  horrible. he seems to have cut off any retreat by virtually ruling out re-examining whether the murdoch organisation is a 'fit and proper person' to own sky. it looks as though, unless the d.c.m.s. lawyers come up with something, he will be allowing news international to complete the share purchase in the next couple of months. 

His position is horrible because these hacking disclosures are just going to run and run. any criminal and civil  proceedings are months if not years away, and with each twist, turn and disclosure, it will become clearer and clearer just how unfit and improper news international were to be allowed to take over sky.

Boys and Girls come out to play

I'm grateful to Karen Watson for pointing me towards Mara Hvistendhahl's book ' Unnatural Selection: Choosing Boys Over Girls and the Consequences of a World Full of Men'. She points out uncontravertial fact that in many countries, and some states in the U.S., the gender ratio is becominig heavily skewed in favour of boys. in a province of china, there are 163 girls to every 100 boys under the age of four.

The world is becominig 'increasingly male' and this gender mismatch is likely to create, according to ms hvistendahl, 'profound social unheaval'.

Identifying a probem is miles away from suggesting solutions. Take the legal position in the UK. genetic manipulation for social reasons is banned. 

Spring Starlings

 

 

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Thought for the Day- When Reasons Fail.

' The conflict between science and religion is reducible to a simple fact of human cognition and discourse: either a person has good reasons for what he believes, or he does not. If there were good reasons to believe that Jesus was born of a virgin, or that muhammed flew to heaven on a winged horse, these beliefs would necessarily form part of our rational description of the universe. Everyone recognizes that to rely on 'faith' to decide specific questions of historical fact is ridiculous-that is,until the conversation turns to the origin of the books like the bible and the koran, to the resurrection of Jesus, to Muhammed's conversion with the archangel Gabriel, or to any other religious dogma. It is time that we admitted faith is nothing more than the license religious people give to one another to keep believing when reasons fail.'

Sam Harris letter to a Christian Nation-a challenge to faith pp66-67

 

dew on aquilegia leaves

it was worth getting up early this morning to catch this macro shot

free legal advice from lord justice laws to the christian legal centre

i notice here that the christian legal centre has 'more than 50 cases in religious discrimination fight'

i don't want to discourage  lawyers doing pro bono work, but the centre's  strike rake is not very impressive.

before  they start more hopeless cases,  i can point  them  to some free advice.

it comes from one of their many failed litigious efforts- mcfarlane v relate avon ltd 2010. mcfarlane, a christian, was employed by relate. he was dismissed because  he refused to give certain  sexual advice to same sex couples in breach of the agreement with his employer.

former archbishop of canterbury, lord carey of clifton,submitted a witness statement on behalf of mcfarlane.

according to the court, carey's statement containing his concerns was

formulated at such a level of generality that it is hard to know precisely what Lord Carey has in mind.

 

but the court  was able to extract these bullet points:

• "To the religious adherent religion is the route to salvation."

• "The fear of hell is central to the appellant's religious belief and individuals ought to be informed of the consequences of hell."

• "The proposition of the appellant's religious belief is that sin will have eternal consequences. Those who do not repent will go to hell when they die."

and now comes this withering comment from lord justice laws on carey's statement. it's quoted in full.

 

1. In a free constitution such as ours there is an important distinction to be drawn between the law's protection of the right to hold and express a belief and the law's protection of that belief's substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian's right and every other person's right to hold and express his or her beliefs, and so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society. The first of these conditions is largely uncontentious. I should say a little more, however, about the second. The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law, the prohibition of violence and dishonesty. The Judea-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of law-makers as to the objective merits of this or that social policy, and the liturgy and practice of the established church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled; it imposes compulsory law not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since, in the eye of everyone save the believer, religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may, of course, be true, but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer who is alone bound by it; no one else is or can be so bound, unless by his own free choice he accepts its claims.

 

The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified; it is irrational, as preferring the subjective over the objective, but it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.

 

So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime. 

before the  christian legal centre traipse off the court again, i suggest they learn this extract by heart.