Religious Accommodation, European Controversy, and Posthumous Pardons – the Human Rights Roundup
30 December 2013
Welcome back to the UK Human Rights Roundup, your regular fluttering confetti of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.
This week, amidst the festive cheer, controversy over European human rights rages on, in relation to both the Charter and the Convention. In other news, the posthumous pardon of Alan Turing sparks debate over the use and abuse of the royal prerogative.
In the News
This week, retail giant, Marks and Spencer, allowed its Muslim employees to opt out of selling pork and alcohol, in accordance with their religious beliefs. Adam Wagner has considered this issue, and tracked the related case law, on the UK Human Rights blog here.
The accommodation of religion has long been a controversial issue in France. In September, the French education minister announced that a Charter for Secularism would be displayed in French schools. The French Conseil d’État has considered the extent of the ‘duty of neutrality’ in schools, distinguishing between users of the service, such as parents, who need not observe the duty of neutrality, and agents in public services who must. For more information, see this post by Jonathan Derbyshire on the Prospect Magazine blog.
The Charter of Fundamental Rights is back in the news this week. While the UK claims to have secured an opt out to the Charter, both the Court of Justice in Luxembourg and the European Commission have said that the Lisbon Protocol simply explains the extent of the Charter rights. This week, Secretary of State for Justice and Lord Chancellor, Chris Grayling, has said that it is ‘absurd’ to suggest that the UK would be bound by the Charter, and claims ‘this country never wanted’ or agreed to it. These fresh comments appear to be in response to a discussion paper published by European Commission last month, suggesting that the Charter rights will be enshrined in all EU member states. See Rosalind English’s post on this issue here, and a summary of the controversy so far in a previous roundup here.
Battle of the Judges: Sovereignty vs Strasbourg?
The President of the European Court of Human Rights, Judge Dean Spielmann, has waded into the prisoners’ voting saga this week. The judge not only stated that Britain’s ban on prisoner voting violates international law, but also suggested that the UK would have to leave the EU if it fails to comply with European human rights law. For more information on the issue of prisoner voting, see our blog posts here.
In response, the former Chief Justice, Lord Judge (pictured), told BBC Radio 4 that Parliament must consider the extent to which it is surrendering its sovereignty to an unelected and unaccountable body of judges, whose rulings are beyond challenge. Lord Judge went on to say that, if Judge Spielmann is correct, the Strasbourg court can legislate on a wide variety of societal issues and organise their affairs.
For a more detailed consideration of the recent flurry of judges’ opinions on this topic, see Rosalind English’s post.
Meanwhile, Labour MP, Sadiq Khan, has criticised the attitude of the government generally and the Chris Grayling more specifically in relation to human rights. Mr Khan argued that the general anti-human rights rhetoric of the Conservative government and a ‘legally illiterate’ Lord Chancellor have legitimised the wilful disregard of countries such as Ukraine to judgments of the Strasbourg court.
The Pardon of Alan Turing
This week, the Queen announced the posthumous pardon of Alan Turing, the mathematician known for deciphering the so-called ‘Enigma code’ during WWII, who was convicted of gross indecency and chemically castrated after he was found to have had sexual relations with another man. Turing later died of cyanide poisoning, and is believed to have taken his own life. His pardon was granted under the Royal Prerogative of Mercy, following a request by the Secretary of State for Justice, Chris Grayling.
A number of commentators have criticised the decision, suggesting that it should not only be limited to Turing. Writing for the Guardian, for example, Ally Fogg has suggested that by singling out Turing for pardon on the basis that he was ‘an exceptional man’, the Secretary of State has failed to recognise why the persecution was wrong. This, he argues, is not because the mathematician was a ‘modern legend’, but rather because gay men generally had done ‘absolutely nothing wrong’.
In a similar vein, Carl Gardner has argued that the pardon is arbitrary and irrational. In a recent post, he highlights that the royal prerogative of mercy has not conventionally been used to pardon those successfully convicted under the laws that stood at the time of that conviction. This was recognised in a previous proposal, by Lord Sharkey, for a statutory pardon of Turing, which was objected to by Government whips in the Commons last month. The status of Turing, as an exceptional man, provided the only basis for the departure from this convention – and Gardner criticises this as a ‘cabinet game of Great Britons’. Moreover, he suggests that the pardon itself is wrong, suggesting that it is a PR stunt that permits us to stop feeling guilty about our history of persecution.
In Other News
- A post on the Defence Brief blog has examined the sentence given to Denis MacShane, the former MP who received 6 months imprisonment for fraudulently claiming £13,000 in expenses. It suggests that ‘professionals’, such as MacShane, who are convicted of fraud receive a lenient punishment when compared with those convicted of benefit fraud.
- Former Director of Public Prosecutions, Keir Starmer QC, will advise the Labour Party on a new ‘victims law’, giving victims of crime certain ‘minimum entitlements’.
- Mark Elliot has considered the potential impact on human rights of the recent ministerial changes at the Ministry of Justice here
- For the first time, prisoners will only be able to receive Christmas presents and parcels in exceptional circumstances under the Incentives and Earned Privileges scheme. The Prison Reform Trust has commented on these changes here.
R (JS) v SSWP  EWHC 3350 (QB)
A post on the Nearly Legal blog considers the justifications offered by the Department for Work and Pensions for discrimination under the benefits cap. In this case, the High Court accepted that the cap was justified by the need to introduce greater fairness into the welfare system between those in and out of work, by financial savings and by the need to incentivise people to go back to work. The post is critical of these ‘neo-liberal’ justifications and notes that CPAG, who intervened in the case, have highlighted that the benefits cap will widen the gap between those in and out of work.
In the Courts
With the UK courts taking a break this week, we have the opportunity to catch up on some interesting comparative developments from other courts around the world.
- India: Koushal v Naz Civil Appeal No. 10972 of 2013
A two-judge bench of the Indian Supreme Court overturned a decision of New Delhi High Court which had decriminalised sodomy. See Tarunabh Khaitan’s post for the UK Constitutional Law Group here.
- Malaysia: Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri R1-25-28-2009
The Court of Appeal in Malaysia this year ruled that non-Muslims cannot use the word Allah when referring to their Deity, even in their own faith. See this post on the Oxford Human Rights Hub blog for more information.
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UK Human Rights Blog Posts
- M&S, Muslim Employees and the tricky issue of reasonable accommodation – December 23, 2013 by Adam Wagner