Law and religion round-up – 28th February

Prosecuting assisting suicide in Scotland, the right to manifest religion in the workplace – and the relevance of Gilbert & Sullivan to the referendum… 

Court of Session upholds prosecution policy on assisting suicide

In Ross v Lord Advocate [2016] ScotCS CSIH 12 the Second Division of the Inner House rejected the reclaiming motion from a decision of the Lord Ordinary on a petition for judicial review of the Lord Advocate’s failure or refusal to publish specific guidance on the facts and circumstances which he would take into account in deciding whether or not to prosecute an individual who assists another to commit suicide. The reclaimer, a 65-year-old man, suffers from diabetes, heart problems, Parkinson’s disease, and peripheral neuropathy. It was agreed by both sides that the circumstances engaged Article 8 ECHR.; however, the Court concluded that the policy was “prescribed by law” and that there was no evidence that the law was being applied by the Lord Advocate in an arbitrary way.

UKHRB has posted a helpful analysis of the judgment by Thomas Raine. In deference to David Allen Green’s dictum – more below – that “The one bad reason to blog is to do it just for the sake of it” there’s little point in us doing the same. But that won’t let Frank off having to write a note for Law & Justice.

Victoria Wasteney in the EAT

Readers may recall the case of Victoria Wasteney, who worked as Head of Forensic Occupational Therapy for East London NHS Foundation Trust, mainly at the John Howard Centre – a secure mental health services facility for patients admitted under the Mental Health Act 1983. She had been given a final written warning by the Trust for three charges of misconduct – praying with EN, a Muslim colleague of Pakistani heritage, giving her a book about a Muslim woman who converts to Christianity, and inviting her to church events – though that had subsequently been reduced on appeal to a first written warning. In Wasteney v East London NHS Foundation Trust [2015] ET 3200658/2014 she claimed unlawful discrimination and harassment because of religion or belief arising out of the disciplinary proceedings. The Employment Tribunal dismissed her claim: we noted the case here.

The Evening Standard reports that the Employment Appeal Tribunal heard her appeal  last week. For Ms Wasteney, Paul Diamond argued that her actions were protected under Article 9 ECHR and that there was no evidence to suggest that her work had been distorted by her faith, that she had punished those who criticised her beliefs or that she had discriminated against anyone else on grounds of religion. For the NHS Trust, Ben Collins QC argued the Employment Tribunal had properly based its decision on the provisions of the Equality Act 2010 rather than on human rights law and and that the case did not raise Article 9 issues. HHJ Eady QC reserved her judgment to a later date.

Hijabs again  –  but this time in the CJEU

On 16 March the CJEU (not the ECtHR) is to hear two cases on religious dress at work:

  • Bougnaoui and ADDH (Case C-188/15) is a reference from France about an employee who wore an Islamic headscarf and was told by her employer to remove it while visiting a client, after the client’s staff complained about her appearance: she was dismissed after she refused to do so.
  • Achbita (Case C-157/15) is a reference from Belgium about whether or not a prohibition on Muslim women wearing headscarves in the workplace constitutes direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs.

Given the fairly deferential attitude of Strasbourg in recent French veiling cases, it will be interesting to see if Luxembourg is more robust. And rulings of the CJEU, unlike rulings of the ECtHR, are binding on states parties.

“ … and I am right and you are right and everything is quite correct”

As ever, W S Gilbert has an expression pertinent to most legal situations, and whilst we have decided not to cover the UK’s EU Referendum per se (not least because we just don’t have either the time or the inclination to moderate the inevitable shoals of comments that would ensue if we did), the legal force of the deal David Cameron struck, giving the UK special status within the EU, is of central importance.

The PM vowed to lead the “remain campaign” for the EU referendum on the basis of the agreement he reached in Brussels. Michael Gove has told the BBC he believes the deal is not legally binding and could be struck down by the European Court of Justice. The PM says Gove is wrong: Britain’s new settlement in the EU has legal force and is an irreversible international law decision that requires the CJEU to take it into account; in this he is supported by Dominic Grieve, the former Attorney General. EU Council President, Donald Tusk, has told MEPs the deal was “legally binding and irreversible”.

This Gilbertian situation of a Prime Minister publicly disagreeing with a Lord Chancellor about what is legally binding has been analyzed by Joshua Rozenberg, who concludes:

“At one level, the protagonists are talking about different things: Gove is discussing EU law while Cameron is relying on international law. But, as is often the case with legal disputes, there are powerful arguments on both sides. We shall just have to wait and see what the European court decides – if it ever comes to that. Meanwhile, the political fight continues.”

Or as Pish-Tush sings in The Mikado: “And we are right, I think you’ll say, To argue in this kind of way; And I am right, And you are right, And all is right—too-loo-ral-lay!”.

Quick Links

  • Church of England: Week in Westminster, 22nd-26th February 2016: Bishops in the Lords spoke to amendments on the Government’s Trade Union Bill and took part in votes on the Scotland Bill and Immigration Regulations. Bishops also spoke in a debate on the Middle East and on a Private Members’ Bill on NHS Charitable Trusts. They asked questions on freedom of speech at universities, conflict in Burundi, sustainable technology and NHS staff. In the Commons the Second Church Estates Commissioner answered questions on pay and on celebrations for the 90th birthday of HM Queen.
  • Solicitors Journal: Why some lawyers should blog, and why some should not: David Allen Green contends there are three reasons why all lawyers should consider blogging – and other forms of social media – and one reason why they should not: “Not all lawyers will want to blog and that is a good thing. But some lawyers will enjoy it and their readers will get a lot out of it. It can promote your own understanding of the law and your professional profile, as well as promoting the public understanding of the law. And if you don’t want to blog, you will still have the immense benefit of reading posts of the lawyers that do.”

And finally …

This week a tweet from David Allen Green ‏@DavidAllenGreen raised the perennial anorak issue of whether one should use “referendum” or “referenda”. A search of Hansard will reveal a number of considerations of the question, including an amusing exchange initiated by Alan Clarke (Kensington and Chelsea) in 1998. Whilst the tweet generated a significant amount of correspondence, the overall consensus appears to have come to the wrong conclusion

However, for those pedants who wish to be accurate [not precise!], a piece in The Independent by Andy McSmith ahead of the Scottish Referendum gives a more detailed explanation: briefly, a gerund has no plural form in Latin, therefore if “referendum” were a gerund, one could not say “referenda”, but since it is in fact a gerundive, “referenda” is correct [but a tad pedantic]. The editorial policy of L&RUK has been to use “referendums”; the only occasion on which “referenda” was used related to a verbatim quote of a third party.

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