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.
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.”
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:
- The restriction must have an established basis in law.
- The restriction must be legitimate, i.e. it genuinely pursues one of the aims set out in Article 9(2) (quoted above: public safety…)
- The restriction must be necessary in a democratic society (case law says “necessary” falls somewhere between ‘indispensable’ and ‘useful’ or ‘expedient’)
- 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.