Religion and law round up – 17th August

Not all that much that’s specifically religious this week, but there was some interesting legal stuff… 

Lord Neuberger on the ECtHR, the judicial process – and sausages  

The Supreme Court has released the text of two fascinating speeches which its President delivered recently at conferences in Sydney and Victoria.

In The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience Lord Neuberger makes various important points on the relationship between the UK courts and Strasbourg:

“Save where we feel that Strasbourg has misunderstood or misappreciated our common law system, we UK judges have … sometimes been too ready to assume that a decision, even a single decision of a section of that court, represents the law according to Strasbourg, and accordingly to follow it. That approach is attributable to our common law attitude to precedent … I think we may sometimes have been too ready to treat Strasbourg court decisions as if they were determinations by a UK court whose decisions were binding on us” [para 35].

That said, however:

“a UK judge … considering not following Strasbourg jurisprudence …  should bear in mind that one of the purposes of introducing the [Human Rights Act 1998] was to prevent litigants whose human rights were not recognised domestically having to go to Strasbourg to vindicate their rights against the UK government. If UK judges are too ready to depart from Strasbourg, we get back where we were before the HRA came into force” [para 37].

“… the absence of a written constitution may not always prevent us from relying on our fundamental constitutional conventions … In [R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] 1 WLR 324] we had to consider the suggestion that, in order to see if a statute conflicted with those laws, the courts might have to assess the quality of the debate in Parliament on the statute. In a judgment I wrote jointly with Jonathan Mance, the Supreme Court made it clear that it would have reservations about following any such suggestion in the light of section 9 of the Bill of Rights and the well-established principle that the courts do not poke their nose into parliamentary business, and, by the same token, politicians do not get involved with the courts” [para 38].

He suggests that the fact that the ECtHR is an international court means that its decisions “have to apply across thirty-odd member states with very different traditions and institutions – from Sweden to Turkey, from Luxembourg to Russia” and that “there has to be a degree of give and take” – which means that on some topics, Strasbourg will accord a margin of appreciation to member states [para 39].

He acknowledged that “unelected” judges, especially foreign ones, were perceived to have been given powers which they had not previously enjoyed. That perception, “coupled with the distaste in some political quarters for all things European”, had made the Convention “something of a whipping boy for some politicians and newspapers”. However, though there were decisions of the Strasbourg court with which he disagreed that was scarcely surprising: “indeed, it would be astonishing if it were otherwise” [para 41]. And he felt that very few of its decisions could fairly be said to be misconceived.

Though it was valuable for judges to be given a substantial role supported by the rule of law in protecting individuals against the state, nevertheless:

“I strongly believe that judges should not be anxious to increase their powers, and indeed should not even be enthusiastic about using any powers they have. A degree of judicial self-restraint is always appropriate” [para 42].

In conclusion:

“My colleague Jonathan Sumption has suggested that the Strasbourg court suffers from a democratic deficit, and this undoubtedly has some force. However, the development of pan-European law after centuries, indeed millennia, of separate development and frequent wars, and with different political and legal traditions, and different historical experiences and different traditions, was never going to be easy. It is therefore inevitable that the Convention, like the EU, would be a controversial topic in the UK. Watch this space” [para 43].

Which we certainly shall.

In Sausages and the Judicial Process: the Limits of Transparency he takes a perceptive and sometimes rather wry look at judge-made law. We shan’t summarise his speech here; but it is well worth reading, not least because it confirms our suspicion that at least some members of the judiciary write judgments by deciding on the just decision then working backwards from that to find the arguments and precedents to support it. And as Lord Neuberger reminds us, over forty years ago Lord Reid dismissed the idea that judges merely declared the law rather than playing any role in making it with the magisterial put-down that “… we do not believe in fairy tales any more”: see “The Judge as Lawmaker” (1972) Jl of Public Teachers of Law 22.

No compensation for prisoners denied the vote

While we’re on the subject of Strasbourg, on Tuesday the ECtHR handed down another judgment in relation to the denial of the vote to prisoners by the UK. In Firth & Ors v United Kingdom [2014] ECHR 874 the Fourth Section held by five votes to two that there had been a violation of Article 3 of Protocol No 1 to the Convention (free elections). However, it held unanimously that the finding of a violation was of itself sufficient just satisfaction for any non-pecuniary damage and made no award. Nor did it make any  award as to costs. Great rejoicing in Whitehall, no doubt – but the major problem of compliance with Hirst v United Kingdom (No 2) [2009] ECHR 2260  and Scoppola v Italy (No 3) [2012] ECHR 868 remains.

The Tricycle Theatre and the Jewish Film Festival again

In last week’s round-up we noted that the Tricycle Theatre in Kilburn had refused to host the UK Jewish Film Festival for the first time in eight years on the grounds that the festival was partly funded by the Israeli Embassy. The Tricycle has now relented and a joint statement has been published stating inter alia that:

“Following lengthy discussions between the Tricycle and UKJFF, the Tricycle has now withdrawn its objection and invited back the UK Jewish Film Festival on the same terms as in previous years with no restrictions on funding from the Embassy of Israel in London. The UKJFF and the Tricycle have agreed to work together to rebuild their relationship and although the festival is not able to return in 2014, we hope to begin the process of rebuilding trust and confidence with a view to holding events in the future”.

EHRC call for evidence on religion and belief

The Equality and Human Rights Commission has asked an independent social research agency, NatCen, to conduct a call for evidence on the effectiveness of legislation designed to protect people who hold a religion or belief or do not hold a religion or belief. Says the EHRC: 

“We would like to hear about how your religion or belief or that of your colleagues, employees or customers has affected you at work or when using or delivering services. We are interested in your personal story; what issues came up, how you solved them and the impact on the people involved. We are equally interested in positive and negative experiences. This is an invitation to tell us your story.

We are also interested in your views about how effective the law is and where, if at all, it needs to be changed”.

EHRC is interested in hearing from employees and employers, from service users and service providers and from organisations and individuals involved in supporting or advising people in relation to religion or belief issues. The deadline for online submissions is 14 October 2014 and further information is available here.

Naming of children

We noted the publication of the ONS statistical bulletin, Baby Names in England and Wales, 2013  an event guaranteed to cheer up newspaper editors suffering from the August shortage of copy. But the secular and ecclesiastical law of England and Wales relating to names is quite complex, as we demonstrate.

Presumed consent and organ donation

The Joint Public Issues Team (JPIT) of the Methodist Church, the Baptist Union of Great Britain and the United Reformed Church has published Sharing the gift of life? on the ethics of organ donation, ahead of the forthcoming change in the law in Wales: the Human Transplantation (Wales) Act 2013 (which uses the term “deemed consent”) will come fully into effect on 1 December 2015. The JPIT guide offers a combination of real-life stories, information, theological reflection and topics for discussion.

A recent POST Note[1] PN 441, Organ Donation and Transplants, provides a useful summary of  the Human Transplantation (Wales) Act 2013 anaw 5, the new UK strategy for the improvement organ transplant rates, Taking Organ Transplantation to 2020: A UK strategy, NHSBT, 2013, and other policies to increase the availability of donor organs in the UK.

Quick links

Below is this week’s selection of links to other items &c that may be of interest to readers:

And finally: Without fear or favour Part II…

In last week’s round-up we noted United States v Odeh (ED MI, July 31, 2014), in which a Michigan federal district court judge, Paul Borman, refused to recuse himself in the trial of a Palestinian woman charged with hiding her terrorism-related past in coming to the US and applying for citizenship. The allegation was that he might be biased because of his long history of support and fund-raising for the Detroit Jewish Federation and organizing trips to Israel and that his Israeli connexions might have given him extra-judicial information relevant to the defendant’s claim that she had been beaten and raped while in Israeli custody.

Well, as it turned out we were premature: on Monday, in US v Odeh (ED MI, Aug 12, 2014) Borman J recused himself sua sponte after the prosecution had produced a translation of the Israeli indictment against Ms Odeh which revealed that the supermarket targeted in the bomb plot for which she had been convicted was part of the SuperSol chain. He explained that

“at the time of the 1969 bombing, my family had a passive financial investment connection to SuperSol…. The Court concludes that my family’s passive financial investment connection to SuperSol at the time of the 1969 bombing could be perceived as establishing a reasonably objective inference of a lack of impartiality in the context of the issues presented in this case.

I recuse today, not because of my charitable giving or my work on behalf of the Jewish Federation of Metropolitan Detroit or other charities, which I concluded in my previous Order created neither the reasonable appearance nor the fact of impartiality. My decision to recuse today is based upon facts which became known to me yesterday in review of a relevant document not previously seen by the Court….”.

With thanks once again to Religion Clause

[1] Parliamentary Office of Science and Technology: Published 12 September 2013, Amended 15 April 2014.

[2] Web conferencing.

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