No religion in court please
31 January 2011
Shergill v Purewal & Anor  EWHC 3610 (QB) (15 December 2010) – Read judgment
UK Human Rights Blog - 1 Crown Office Row
31 January 2011
Shergill v Purewal & Anor  EWHC 3610 (QB) (15 December 2010) – Read judgment
20 January 2011
Terry Jones, an American pastor who threatened to burn Korans on the 9th anniversary of the 9/11 attacks, has been banned from entering the UK “for the public good”.
He has told BBC Radio 5 live that he would challenge the “unfair” decision as his visit could have been “beneficial”. But, as I posted last month, the recent case of an Indian preacher who challenged his exclusion from the UK suggests that the courts would be unlikely to quash the Home Secretary’s decision. The following is taken from my previous post on the topic.
5 November 2010
In a new article, Afua Hirsch discusses the difficult question of the place of religion in our courts, in light of comments made by a judge sentencing Roshonara Choudhry, a radicalised Muslim woman, for the murder of a Christian man.
The writer compares this case to Lord Carey’s recent appeal in a same-sex counselling case that religious cases be heard by religion specialists (see our post), as well as the official censure of a judge in a criminal damage case who made overtly political comments about the 2008/9 Israel-Gaza war (our post here). Hirsch argues that religious courts may be the answer to these problems, although this may be unfair to other groups affected by discrimination such as women and ethnic minorities.
16 September 2010
The Pope begins a four-day visit to the UK today, the first official trip by a serving Pope for 28 years. The visit has already been controversial, and it raises some interesting questions from a human rights angle.
The leader of the Catholic church has spoken out recently on UK equality laws, complaining that they would run contrary to “natural law”. His comments were most likely directed at the effect of the new legislation on Catholic adoption agencies, making it more difficult for them to turn down gay couples. This could have been the key issue of the trip, but it has been overshadowed by a more difficult and damaging controversy.
14 July 2010
The courts’ relationship with religious principles is rarely out of the spotlight, and recent decisions have provided more fuel for this debate.
Aidan O’Neill QC, writing on the UK Supreme Court Blog, provides an interesting discussion of last week’s Supreme Court decision in HJ (Iran) in the context of a series of controversial United States decisions on sexuality and religion.
We posted last week on the case of HJ (Iran), in which the Supreme Court ruled that policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights. Rosalind English examined the case in the context of a European Court of Human Rights rejecting a complaint by a same-sex couple that Austria was in violation of the Convention for not granting them the right to marry.
24 June 2010
Grzelak v. Poland (no. 7710/02) – read judgment
The European Court of Human Rights has found that A Polish boy who refused to attend religious instruction classes for reasons of personal conviction had been discriminated against human rights because of a policy of reflecting that non-attendance in school reports.
The applicant Mateus Grzelak had been brought up in a non-religious tradition by his parents who were also applicants. Mateus began his schooling at the age of seven, and in conformity with his parents’ wishes, he did not attend religious instruction. Doctrinal classes were scheduled in the middle of the school day, between various compulsory courses.
14 June 2010
A number of recent cases have ignited an interesting debate on the place of religion in the UK court system, and whether the courts are doing enough to ensure religious freedom as they are obligated to do under Article 9 of the European Convention on Human Rights.
The most notorious example has been McFarlane v Relate Avon Ltd, an unfair dismissal claim brought by a relationship counselor who as a result of his Christian beliefs refused to promote gay sex. The former Archbishop of Canterbury submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the Court of Appeal rejected his arguments outright.
We also posted last week on the Hardeep Singh case, in which Mr Justice Eady in the High Court effectively threw out a libel action because it rested upon fundamental principles of legal doctrine which could not properly be examined by a secular court. We posted:
8 June 2010
HH Sant Baba Jeet Singh Ji Maharaj v Eastern Media Group & Anor  EWHC 1294 (QB) (17 May 2010) – Read judgment
The High Court has effectively thrown out a libel action against a journalist who claimed in an article that a Sikh holy man was a “cult leader”. The judge’s reasoning was that the disputed points of religious principle were not questions which a secular court could properly decide. In refusing to rule on such cases, are the courts taking an increasingly anti-religious view, and are they now in breach of the human right to religious freedom?
The decision was reported in mid-May, but Mr Justice Eady’s judgment was made publically available yesterday. It highlights controversial issues of whether religious believes are getting a fair hearing in the English courts, and whether “secular” judges are qualified to decide points of religious principle.
10 May 2010
McFarlane v Relate Avon Ltd  EWCA Civ B1 (29 April 2010) – Read judgment or our previous post
Lord Carey of Clifton, responding to Lord Justice Laws’ observations in MacFarlane, has called this latest dust-up about religion in the courts a “deeply unedifying clash of rights“. It is indeed a clash of rights, but unedifying it is not. It is precisely when these rights collide that some real, hard thinking is generated, not only about the precise content of these rights, but their historical purpose and their proper function in modern society.
It may be that when the architects of the Convention drafted Article 9, guaranteeing freedom of thought, conscience and religion, they did not foresee that its future role would not be so much the protection of oppressed believers against Soviet-style secularisation but instead a thorn in the flesh of public authority employers seeking enforce their legitimate objectives against non-compliant religious employees.
29 April 2010
McFarlane v Relate Avon Ltd  EWCA Civ B1 (29 April 2010) – Read judgment
Gary McFarlane, a Christian relationship counsellor, has lost his application to appeal his Employment Appeal Tribunal decision in the High Court. Mr McFarlane was sacked by a marriage guidance service after he said he would not promote gay sex. He claimed he had been discriminated against on religious grounds.
The case caused a furore as the former Archbishop of Canterbury Lord Carey submitted a witness statement stating that cases such of these should be heard by judges with special religious sensitivity. Lord Justice Laws in the High Court has now rubbished that suggestion. He said:
18. Lord Carey’s observations are misplaced. The judges have never, so far as I know, sought to equate the condemnation by some Christians of homosexuality on religious grounds with homophobia, or to regard that position as “disreputable”. Nor have they likened Christians to bigots. They administer the law in accordance with the judicial oath: without fear or favour, affection or ill-will.
19. It is possible that Lord Carey’s mistaken suggestions arise from a misunderstanding on his part as to the meaning attributed by the law to the idea of discrimination. In cases of indirect discrimination (such as are provided for by paragraph 3(1)(b) of the 2003 Regulations, which is centre stage in the present case) the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where (in a carefully controlled legislative setting) it can be shown to have justifiable effects. Accordingly the proposition that if conduct is accepted as discriminatory it thereby falls to be condemned as disreputable or bigoted is a non sequitur. But it is the premise of Lord Carey’s position.
7 April 2010
Shirley Chaplin, an NHS nurse who was moved to a desk job for wearing a crucifix at work, has lost her employment discrimination claim against the NHS.
The Employment Tribunal judgment is not available at present, but The Times reports:
John Hollow, the tribunal chairman, ruled that the Royal Devon and Exeter Hospital had acted reasonably in trying to reach a compromise. It had argued that the objection to the crucifix, which Mrs Chaplin, from Kenn, near Exeter, had worn for 30 years, was based on health and safety concerns about patients grabbing the necklace, not religion.
According to the Christian Legal Centre (CLC), which strongly supports Ms. Chaplin’s case, the Tribunal held that Mrs Chaplin had not been indirectly discriminated against by the application of the uniform policy because she could not prove she was part of a group affected by the policy.
The Tribunal applied the reasoning in the previous case of Nadia Eweida v British Airways  EWCA Civ 1025. Ms Ewieda’s claim also involved her being banned from wearing a Christian cross at work, in that case at British Airways. The Court of Appeal made clear that in an indirect discrimination cases brought under Reg. 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, it was necessary to show that there had to be evidence of a “group disadvantage”, i.e. that more than one person had been affected by the policy. Ms Eweida could not establish a ‘group’ and as such her case failed.
The CLC claim that “the Tribunal has now decided that a group must be more than two people as well—leaving the law in a ludicrous level of uncertainty”. Ms Chaplin has already said she plans to appeal the decision.
18 January 2010
R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) : R (on the application of E) (Respondent) v (1) JFS Governing Body (2) Admissions Panel of JFS (Appellants) & ORS (United Synagogue) –  UKSC 15 – Read judgment / Press summary
A school for Orthodox Jews which tested applicants for matrilineal descent was acting on the basis of ethnic origin, meaning that their admission requirement constituted direct racial discrimination.
The Court of Appeal has decided there that the appellant school’s admissions policy had directly racially discriminated against the son of the respondent father, contrary to the Race Relations Act 1976 s.1 (RRA).