The Niqaab issue is too important to be left to liberal instinct

17 September 2013 by

A-Muslim-woman-in-a-niqab-007Yesterday, before His Honour Judge Peter Murphy ruled that a female Muslim defendant in a criminal trial must remove her face-covering veil (niqaab) whilst giving evidence, Home Office Minister Jeremy Brown said  he wasinstinctively uneasy” about restricting religious freedoms, but that there should be a national debate over banning the burka.

Many of us have a gut reaction to the niqaab, which poses particular problems for our mostly liberal, secular society. Arguably, it also prompts less laudable instincts originating in fear of the ‘other’. But trusting in our instincts is never a good way of solving complex problems. As I have suggested before, when politicians appeal to their gut they are often just avoiding making an intellectually sound case for their position.

Judges have no such luxury. That is why HHJ Murphy has unapologetically placed himself in the national gaze by producing a clear and forthright ruling over the Niqaab (full face covering except for the eyes), which he described as the “elephant in the room“. The relegation of such important issues to the sphere of “‘judge craft’ or ‘general guidance’” has resulted, he argued, “in widespread judicial anxiety and uncertainty and to a reluctance to address the issue.”

Don’t listen to the polemicists, like The Commentator, Dan Hodges and Melanie Philips, all of whom would have us believe there is only one possible answer to this question. The Niqaab issue is not straightforward. Our liberal Spidey sense may be tingling over women choosing or being forced to cover their faces, but in our mostly secular society, where most have never experienced religion first-hand, let alone minority Islamic belief systems, it is not good enough to assume our instincts are right.

Good complexity

To put the debate in its starkest terms, on one side are those who say religious believers should be able to dress how they like, no matter how offensive that dress is to others. Believers’ reasons for doing what they do are probably complex and multi-dimensional. Some feel forced or even threatened to wear the niqaab. Others say they chose to wear it for god, not man.

On the other side are those who have general objections to the niqaab from a liberal and/or feminist perspective, arguing that any culture which recommends or forces a woman to cover her face is unreasonably subjugating that woman. Others have specific objections, for example that wearing the niqaab in public places like banks and airports creates security risks. Then there is the issue of wearing a niqaab in court, which generates particular problems (it is said) for giving evidence, where a jury is unable to “read” the expressions of the witness.

Into this foggy landscape steps the Human Rights Act. Article 9 of the European Convention on Human Rights (ECHR), which all public authorities must adhere to, protects “freedom to manifest one’s religion”. But that freedom can be limited in certain circumstances, namely those which:

are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

I am not going to delve into the specifics of this decision (update: that post is here), but rather explain why the human rights framework is  useful for approaching  difficult issues such as the niqaab. Indeed, in his ruling HHJ Murphy sounded positively relieved to have access to those tools, stating that the issue of whether a defendant before the Crown Court may wear the niqaab “is not one of ‘judge craft’, or even one for ‘general guidance’. It is a question of law.

Restricting religion

Human rights law relating to religious rights mandates that certain questions be asked before those rights are even engaged: namely, whether the act in whether the act in question attains a “certain level of cogency, seriousness, cohesion and importance”  and also is “intimately linked to the religion or belief” (also expressed as a “sufficiently close and direct nexus between the act and the underlying belief“). These principles can be found in distilled form in the important recent case of Eweida from paragraph 82.

As HHJ Murphy went on to explain, once a manifestation of belief is established as one which is protected under the ECHR, a public authority can only restrict that manifestation if four legal requirements are met:

  1. The restriction must have an established basis in law.
  2. The restriction must be legitimate, i.e. it genuinely pursues one of the aims set out in Article 9(2) (quoted above: public safety…)
  3. The restriction must be necessary in a democratic society (case law says “necessary” falls somewhere between ‘indispensable’ and ‘useful’ or ‘expedient’)
  4. the restriction must be proportionate in the sense that there must be a rational connection between the objective and the restriction; and the means employed are not more than is necessary to achieve the objective.

HHJ Murphy went on to apply those principles to the question of whether a defendant (or generally, a witness) in a criminal trial should be permitted to wear her niqaab. His ruling is clear and well reasoned. He decided that the woman should be permitted to  wear the niqaab during the trial, save for when she is giving evidence when she must remove it. The core of his decision is his acceptance that “the ability to observe a witness’ demeanour and deportment during the giving of evidence is important and … essential to assess accuracy and credibility“. He concluded

…  No tradition or practice, whether religious or otherwise, can claim to occupy such a privileged position that the rule of law, open justice, and the adversarial trial process are sacrificed to accommodate it. That is not a discrimination against religion. It is a matter of upholding the rule of law in a democratic society. (70)

More detailed analysis of the decision will follow. For now, first I would simply recommend reading the ruling itself, which is in many ways a model of how a complex human rights issue should be approached; reasonably and sensitively.

Second, I should say that whilst I believe this is a perfectly reasonable and well-argued decision, that is not to say it will not be overturned by an appeal court. The issue is too difficult to give rise to easy answers, and an appeal court could reasonably find a different balance is the right one, for example the niqaab being removed for the whole trial (Joshua Rozenberg’s preferred approach). It is arguably doubtful that seeing a witness makes a jury any better at assessing their evidence; ironically, it may be been HHJ Murphy’s own instinctive appreciation of the importance of seeing a witness which led him to his decision – see here for a forthright argument against his approach.

Third, I should point out that the real human rights fight over niqaabs is still to come, when the European Court of Human Rights Grand Chamber assesses France’s ban on niqaabs in all public places (case details here, hearing 27 November). It is difficult to say which way the court will rule; on the one hand, this looks like just the kind of ‘blanket ban’ which the court has in the past resisted as too blunt a tool (see from 76 of the prisoner voting case Hirst). On the other, the court will be very sensitive indeed to intervening in an issue where, arguably, individual states legitimately take a different line due to historical, social and religious factors, as it was in 2005 over a Turkish university’s niqaab ban. As I mentioned, it isn’t eaasy.

The best approach

Whatever your own gut reaction to the niqaab, I suggest that the human rights approach is the best we have available to resolving this complex issue. It allows for the needs of different individuals and groups to be fed into a balancing framework, evolved not from gut instinct or populism but from past experience of dealing with similar issues. The decisions this  generates may end up pleasing nobody, but that can also be seen as a success rather than a failure where interests do not, and cannot, entirely coincide.

And that is the real liberal approach, not blanket bans or screeching condemnations. What, after all, is human rights law if not a distillation of liberal instincts into clear principles, fleshed out by decades of specific application through case law?

Lord Sumption once suggested that most law “is only common sense with knobs on“.  The same could be said about human rights law. Although the detractors argue  human rights are anathema to common sense, often what they really mean is that particular human rights decisions run against their own sense. If the history of liberal society teaches us anything, it is to privilege reasoned debate over instinct. So, if we are to have a national debate over niqaabs, human rights principles are not a bad place to start.

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  1. esevers says:

    Why not accommodate it by ensuring that niqaab wearing women (who are a vanishingly small minority) are seen by female judges and juries? That way they could remove their veil without compromising their religious freedom.

  2. […] media and by politicians. UKHRB includes predictably measured and analytic posts by Adam Wagner, here and Alasadair Henderson, here. Adam Wagner goes so far as to suggest that, though HHJ Murphy had […]

  3. Trofim says:

    Coming into central Brum from the sw on the 45 bus, two women – nay, let’s say apparently human beings – in niqabs got on the bus at different stops as the bus got nearer to the city centre. Both showed the driver some document, he appeared to look at it and no and the bus carried on its way. If this is a bus pass, I can only wonder what is on it. Does anyone have any idea? I believe I have heard in the past that the bus company leaves it to the discretion of the driver whether or not he challenges a creature with face hidden. I’m fairly sure your average bus driver is going to want to avoid any possible trouble, like us all.

  4. Andarrios says:

    The main lines taken by both the trial judge here and Alan disappoint my expectations. Even were face-covering required by mainstream Sunni, Shia, Druze, Sufi, Elevener, etc. Islamic confessions (it is not required; it’s a personal and extreme interpretation of a recommendation in 7th Century CE Arabia to women when traveling) the consequent circulation of unidentifiable persons in today’s public space imposes unusual risks, and loss of rights on all other persons.
    Were I to interpret a Biblical (Leviticus) verse as imposing on me religious duty to carry a loaded assault rifle about the streets, in which European country would such an argument not be laughed into outer space?
    Why should I accept a masked person coming up behind me in a queue? Or boarding an airplane with me? Must a shopkeeper accept this new risk?
    Defense of my own rights, or taking the measures recognised since centuries as ‘what a prudent man would do’ becomes impossible where I cannot identify and see the faces of persons around me. How lodge a complaint for hate-speech, or public slander, or threats and menaces should these come from a masked person?
    Also, can anyone explain why denoting a certain belief (an assertion made without proof, not subject to rational agreement between persons) as ‘religious’ belief confers a privilege not accorded to some other belief. Suppose I assert my belief that if I transact my banking business masked, hatted and wearing a lumpy overcoat, invisible powers will be pleased with me and bring me luck. Does my HSBC branch have to risk such an intruder accosting its cashiers?
    There are religions -we commonly term them ‘cults’- that require men to go armed. We don’t accept that in the UK, either in public or private.No balance struck: just “no, you may not carry a weapon.” Should we conclude that this trial judge made an unstated decision off his own bat -that special treatment demanded on pretext of religious was not itself damaging to any legitimate interest on its own, and therefore he struck a ‘balance’ between the masked individual in public circulation or coming into court (perfectly OK he decided) and the individual masked while giving testimony before a jury?
    Lastly, what of the offense to their beliefs felt by others? The martyrs to centuries of struggle for equality between the sexes? The gratuitous and unwelcome attention drawn deliberately to sexuality, in everyday affairs, sexualising non-sexual transactions, and giving particular offense to many men by implying lewd motives, and to many women, by implying insufficient decorum on their part. How is this sexualised behaviour in public different from me walking about with a pink plastic penis pinned to my trouser front?

    In short, is the line taken -that this is an issue requiring balance- not flawed at several levels? Isn’t the appropriate line rather setting a limit to an individual’s self-concealment and his or her evasion of potential civil (and criminal) responsibilities? And too, protecting the rights and safety of all those in contact with that individual?

  5. Roger Smith says:

    The interesting thing about the comments so far – and much other commentary – is that they largely discuss the result of the judge’s reasoning. As Adam effectively says, the working out is equally – if not more – important. We can have a debate on the proportionality of any ban on wearing face covering – and personally I would agree with Joshua Rosenberg and others who argue that a defendant’s face should be seen when others give evidence as well as when s/he does. However, Judge Murphy impeccably demonstrates the value of human rights as a method of approaching conflicting rights and responsibilities. He also indicates taht, although the method and values may be engraved in eternal stone, the results of its application may vary. Hence, if we are to preserve our allegiance to the European Convention and embed human rights in our constitution, there is a need for the European Court of Human Rights to apply a margin of appreciation in the application of how rights are construed. That is how we will ultimately come to reconcile human rights, democracy and discretion.

  6. 77tarag says:

    The only masks that should be permitted at criminal proceedings – or at security checkpoints for that matter – should be medical prostheses prescribed for disfiguration attributable to historical injury or disease. Any other subtends a mistrial.

  7. alan david woolf says:

    This is precisely the Pontius Pilate wisdom that should shame anyone who claims the title ‘liberal’. Banning the burqua/niquab means lifting the ban from women otherwise subjucated to Immams/Ayatollahs… Perhaps David might like to recite his apologetic in Yemen, Saudi, Abu Dhab, ‘Palestine’……… the latter where my girlfriend (a moslem) had her nose broken by 3 Islamic thugs for wearing (modest) ‘western’ dress. Perhaps he thinks (as a jew like me) he will get a decent hearing for his rhetoric. It is egregiously laughable; sickening;

  8. Beccy says:

    Interesting – but is her whole demeanor not likely to change due to the fact that she is used to wearing it, (however she may / may not feel about it) and when giving evidence (as if that’s not likely to be stressful enough, whether guilty or not) she is suddenly made to expose more of her skin than she is used to, in public…

  9. My own feelings are that no one should need to hide their faces for any reason. If the law of Britain demands that the face of a witness be on view to the jury, so be it. If we, British born and bred in this country for generations, have to obey the law, then those who come to our shores must do the same – or they can leave, immediately: there can be no extenuating circumstances.

  10. Magi Gibson says:

    If the religion itself – whichever religion – does not allow for equal human rights, ie that both women and men have the same rights and are subject to the same restrictions within that religion – then why should a country where both men and women are accorded full equality pay any attention whatsoever to the dictats of that religion? What is more, if a religion required that men wear full body and face coverings in public, how would that impact on UK society? As a woman I read people’s faces and body language all the time. It’s one of the tools I have as a woman to avoid danger. It allows me freedom to move about alone in public. So is my unease and unwillingness at the thought of being in a train carriage with, say, five men I do not know, in flowing robes, with their faces covered apart from their eyes, to be condemned as a gut reaction? Or is it part of the basis on which our free society operates? Should I be subjected to increased danger and unease – and perhaps feel the need for a strong male companion – so that someone else’s ‘religious’ (inverted commas as that is debatable) dress choice can be respected?

  11. Andrew says:

    No: the jury should be allowed to judge her reaction to all the evidence.

    Some years ago I flew into an airport with only one Immigration Officer on duty: a man. Had there been a woman with a niqaab she would have had to lift it. If there was a woman in the back office she might have come out to help – but the woman would have had to wait. And if she missed the last train from Stansted it would be her problem.

  12. Britain is Britain and should not allow that there should be any British women with arcaic restrictions. They must know their rights to work, to study and to have a face and a voice like everybody. Mens’ religious or atavic male problems should not bother womens’ rights at all.

  13. rogerivanhart says:

    The question of the niqaab should be determined by the religious requirement and not by the way different cultures interpret the religion.

  14. I seem to remember a London bomber fleeing the country while vieled so obviously veils must be removed t ensure correct identification of ht eperson.
    In particular ther are many nstances where Asian/Muslim women have masqueraded as others to commit or aid crime so a veiul must be disallowed when it is essential to determine the correct identity and read the face and body language of the person.
    Most people have a rudimentary knwoledge of face and body language.

  15. forcedadoption says:

    If some stranger had assaulted this woman and she wanted to press charges I doubt if she would have left the court rather than stay give the evidence necessary to gain a conviction. Let her wear what she likes outside the court but not (purely as an example) avoid identification as a murderer by concealing her face from any witnesses (who might have seen her without the niqaab) . That view does not satisfy either of the two superficial classifications made by Adam yet it does seem common sense.

  16. John D says:

    Like you, I think the judge got this right.
    I do believe that it is right that the jury – who will decide the outcome of the trial – should be able to see and hear the accused clearly when they provide their evidence. It could be argued further that the jury should also be able to see the accused when other witnesses are giving evidence too in order to be able to assess the effect of other testimony on the accused.
    Inevitably, this case has sparked off a lot of comment in the mass media. Some Muslims have argued that it is correct that parents should be able to decide on behalf of their children if they should wear such apparel. This is – in my opinion – flawed logic. Similar arguments are put forward for genital mutilation of children which fewer and fewer people now accept.
    Arguably, choice on such issues should only be made when girls become legal adults, i.e. aged 18 and over. Then we can assume that it is genuinely their choice to wear such apparel.
    One question that I have never seen asked is “If it is necessary for women to wear such apparel, why is it not also necessary that men should wear it too?”
    Does anyone know if that question has ever been asked – and answered?

  17. Thomas says:

    I think HHJ Murphy made the right decision, I don’t like it, I’d ban the Niqaab outright but that lends credence to my ‘gut’ feeling that he made the right decision, striking the right balance between the needs of the court and the woman’s freedom of religion.

    1. The wearing of he nikab is not a religious thing. It is an instrument of control over women by bearded bigots and should be forbidden by law!

      1. Trofim says:

        “bearded” bigots ??
        bigots with big ears, bigots with a bad complexion, bigots wearing pyjamas ??
        There should be no place for pogonophobia on a human rights blog :)

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