The last three or four weeks have possibly seen more public discussion of Islamic dress – in particular, veiling – than we have had in the previous couple of years. The debate started when a woman defendant, D, appeared veiled in Blackfriars Crown Court and refused to reveal her face on the grounds that, as a Muslim, she could not appear unveiled in the presence of men who were not part of her immediate family. As we reported on 25 August, at her first appearance HHJ Peter Murphy told her that she could not stand trial in a veil which only revealed her eyes because her identity could not be confirmed.
Coincidentally (as reported here), it then came to light that Birmingham Metropolitan College had banned students, staff and visitors from wearing veils on security grounds –and after an outcry at what was seen simply as discrimination against Muslim students the ban was rescinded. Next, on 15 September the Daily Telegraph reported Home Office minister Jeremy Browne as calling for a “national debate” about whether the secular law should prevent young women from having the veil “imposed” on them.
Then at the plea and case management hearing in D(R), R v  EW Misc 13 (CC) HHJ Murphy gave the following directions:
“(1) The defendant must comply with all directions given by the Court to enable her to be properly identified at any stage of the proceedings.
(2) The defendant is free to wear the niqaab during trial, except while giving evidence.
(3) The defendant may not give evidence wearing the niqaab.
(4) The defendant may give evidence from behind a screen shielding her from public view, but not from the view of the judge, the jury, and counsel; or by mean of a live TV link.
(5) … [T]hat no drawing, sketch or other image of any kind of the defendant while her face is uncovered be made in court, or disseminated, or published outside court” (para 86).
(By this point it will have become apparent that HHJ Murphy did not reveal the defendant’s name. That did not stop at least one newspaper from identifying the defendant and printing her photograph – but we don’t propose to do the same.)
HHJ Murphy took the view that the issue of veiling in court was not one of general guidance but a question of law. Article 9 ECHR gave the defendant a qualified right to manifest her religion or belief; but the court might be entitled to place restrictions on a qualified Convention right. While he accepted the sincerity of D’s belief about veiling in public (para 14), it was essential to the proper working of an adversarial trial that all involved – judge, jury, witnesses and defendant – should be able to see each other at all times during proceedings, partly for identification but also to assess the credibility of witnesses and because “juries very properly rely on their observation of the defendant, not only when she gives evidence (if she does so) but throughout the trial” (para 30). In that context he cited with approval the concurring opinions of LeBel and Rothstein JJ in the Supreme Court of Canada in R v NS 2012 SCC 72 (CanLII) at para 78:
“A clear rule that niqabs may not be worn would be consistent with the principle of openness of the trial process and would safeguard the integrity of that process as one of communication. It would also be consistent with the tradition that justice is public and open to all in our democratic society. This rule should apply at all stages of the criminal trial…”.
The Guardian then reported Home Secretary Theresa May as telling Sky News – perhaps surprisingly – that
“I don’t think the government should tell women what they should be wearing. I think it’s for women to make a choice about what clothes they wish to wear: if they wish to wear a veil that is for a woman to make a choice. There will be some circumstances in which it’s right for public bodies, for example at the border, at airport security, to say there is a practical necessity for asking somebody to remove a veil. I think it’s for public bodies like the Border Force officials, it’s for schools and colleges, and others like the judiciary, as we’ve recently seen, to make a judgment in relation to those cases as to whether it’s necessary to ask somebody to remove the veil. But in general women should be free to decide what to wear for themselves.”
Then the Department of Health asked the General Medical Council to review whether or not NHS staff in England should be allowed to wear full-face veils. Health Secretary Jeremy Hunt said that he had a “great deal of sympathy” with patients who do not want to be treated by a doctor or nurse with their whole face covered but stressed the matter was for professionals rather than politicians to address. He told Sky News:
“This is something that is decided locally by NHS trusts and I strongly support the principle that hospitals should have that local autonomy. But I do want to make sure we have the right professional guidelines in place so that patients can be confident that they are able to see a doctor or nurse’s face whenever they should. I think it should be a professional matter not a political one so we have written to the professional regulator the GMC to ask for their guidelines”.
Dan Poulter, one of Hunt’s deputies and himself a doctor, made the point that effective verbal and non-verbal communication was a vital part of good patient care and that being unable to see a healthcare professional’s face could be “a barrier to good and empathetic communication with patients and their families”. In the wake of this, the Telegraph reported that 17 NHS hospitals across five NHS trusts had already instituted their own bans on front-line staff wearing the niqab while in contact with patients.
The D(R) case, in particular, has been the subject of extensive comment, both in the 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 taken great care over the issue and that his ruling is “is in many ways a model of how a complex human rights issue should be approached; reasonably and sensitively” it could still be overturned by a higher court, which might for perfectly sound reasons strike a different balance. At Nothing like The Sun, Francis FitzGibbon QC suggests that Ms D could simply have been left to take the risk that because the jury could not see her they would give her evidence less weight – and that if that harmed her defence, tough. In a rather similar vein, Matthew Scott at Barrister Blogger argues that trials should not be decided on what a defendant looks like but on the evidence of guilt, and that the defendant’s appearance or demeanour should have nothing to do with the outcome. Carl Gardner at Head of Legal makes some interesting detailed comments on the judgment – which he finds unimpressive. On the other hand, at Halsbury’s Law Exchange Felicity Gerry describes it as “a classic exercise in reasonableness”.
The root of the problem is most probably the pop-up nature of the veiling debate. The issue seems to have crept up on politicians unawares and their positions are totally unprepared.
Some of the comment from the political centre-right, such as Theresa May’s, has been surprisingly measured: Melanie Phillips’s piece in the Mail, on the other hand, starts perfectly sensibly but ends with the predictable melanophilippic. Sarah Wollaston, Conservative MP for Totnes, wrote an anti-niqab piece in The Telegraph from a feminist perspective concluding that “Sometimes you have to force people to be equal” – attracting much unfavourable comment on Twitter and a stentorian counterblast from across the Atlantic. From the centre-left (or so we assume), Tehmina Kazi, director of British Muslims for Secular Democracy, was reported as suggesting that what is needed is an internal debate within Muslim communities themselves about the rhetoric around veiling. Responses from leading figures in the Labour Party have been unexpectedly muted, though perhaps that is because they have been busy preparing for their party conference.
Possibly the generally low-key reaction of politicians on the front benches of all three parties is political expediency, given the sensitivity of the court case, and symptomatic of a general reluctance to be drawn into a potentially explosive issue. Back-benchers, on the other hand, seem to have no such qualms; and lurking behind all this is Philip Hollobone’s Face Coverings (Regulation) Bill, stalled and unlikely to make any further progress, given that it is currently scheduled for second reading on 28 February 2014. Hollobone proposes a fine not exceeding Level 1 on the standard scale for wearing “a garment or other object intended by the wearer as its primary purpose to obscure the face” – and since his Bill provides exclusions on grounds such as health and safety, its target is pretty obvious. (Perhaps it is worth pointing out in passing that though May and Hunt both address the issue of asking a veiled woman to remove her veil, neither comments on the issue of veiled public officials addressed in clause 3 of Hollobone’s bill.)
It appears to us that what is needed is a period of quiet reflection rather than any immediate “national debate”. Even though it affects only a tiny minority of women, veiling is an extremely sensitive issue; and a national debate for which no-one is properly prepared may well do more harm than good. Moreover, if opponents of the niqab are correct in seeing veiling something that women are sometimes pressured into against their will, fining them for doing so will hardly help liberate them from that particular kind of oppression.