The Conseil d’État and the “burkini ban”

Until now, we have avoided commenting on the burkini ban on some French beaches, on the basis that there were several news reports but very little in the way of legal analysis. However, the urgent applications judge of the Conseil d’État has now suspended a ban imposed by the Mayor of Villeneuve-Loubet (Alpes-Maritimes) on wearing the burkini on the town’s beaches.

Background

On 5 August, the Mayor decreed a new local ordinance regulating the use of public beaches in that city, which included an Article 4.3 forbidding swimmers from wearing clothes “obviously showing a religious affiliation” – thereby effectively banning them from the beaches. The ban appeared to be aimed in particular at Muslim women who wore whole-body swimsuits.

The Ligue des droits de l’homme, the Association de défense des droits de l’homme – Collectif contre l’islamophobie en France and others lodged a claim with the urgent applications judge of the Tribunal Administratif of Nice for an order suspending the Mayor’s ordinance. On 22 August, a three-judge section of the Tribunal Administratif dismissed the claim. The claimants appealed to the Conseil d’État.

The judgment

In CE, ordonnance du 26 août 2016, Ligue des droits de l’homme et autres – association de défense des droits de l’homme collectif contre l’islamophobie en France: Nos 402742, 402777, the urgent applications judge noted that a mayor might institute general policing measures necessary to maintain peace and good order, safety, security and public health but that such measures had to respect the fundamental liberties guaranteed by law. Therefore, decisions aimed at regulating access to beaches and swimming had to be limited to what was demonstrably adequate, necessary and proportionate for the maintenance of peace and good order. Moreover, measures to maintain peace and good order had to take into account time, location and what was appropriate in order to safeguard ease of access to the seashore, the safety of swimmers and hygiene and decency on the beach. Other factors were not to be taken into account; and any measure restricting public freedoms had to be justified by clearly demonstrable risks to peace and good order.

In the present case, there was no such evidence of any threat to peace and good order on the beaches of Villeneuve-Loubet as a result of what people wore. Concerns resulting from recent terrorist attacks, in particular from the attack in Nice on 14 July, were not sufficient to justify the ordinance. The Mayor of Villeneuve-Loubet could not, therefore, forbid people in religious attire from access to the beach when such measures were not justified either by threats to peace and good order or by reasons of hygiene or public decency.

Article 4.3 of the ordinance had seriously infringed fundamental liberties – such as the freedom to come and go, religious freedom and individual freedom – in a manner that was clearly illegal. The urgent applications judge therefore ordered that the decision of the judge of the Tribunal Administratif of Nice dated 22 August 2016 be annulled and that the implementation of Article 4.3 of the decree of the Mayor of Villeneuve-Loubet dated 5 August 2016 be suspended.

Comment

Le Monde described the judgment of the Conseil as “a victory for the rule of law” and commented that the decision “provides a welcome opportunity to put an end to a controversy too often exploited for ulterior electoral  motives and class politics.”

It should be noted that what the Conseil has done is to suspend the operation of a particular ban in a particular place – and there are several other bans currently in operation. The Guardian reports that, thus far:

“Only two mayors lifted their bans in the wake of the Villeneuve-Loubet ruling: the Socialist mayor of Oye-Plages near Calais and the centrist mayor of Eze in the Alpes-Maritimes. Mayors from the rightwing Les Républicains party and from the far-right Front National are keeping their bans in place, insisting that the Villeneuve-Loubet case does not apply to them.”

Presumably, either those responsible for imposing them will need to think again in pretty short order or the Conseil will do their thinking for them.

Cite this article as: Frank Cranmer, "The Conseil d’État and the “burkini ban”" in Law & Religion UK, 29 August 2016, https://lawandreligionuk.com/2016/08/29/the-conseil-detat-and-the-burkini-ban/

7 thoughts on “The Conseil d’État and the “burkini ban”

  1. As a secularist I oppose the introduction of laws which are intended to disadvantage persons on the basis of their religion. The only way such an interference with the citizen’s choice of beach attire can be justified is on grounds of public safety or pubic decency. I admit to having problems with the second of these which is at the opposite pole of this issue. How does one establish what is decent or indecent in liberal secular democracy? Is abhorrence of public nudity or selective covering of certain body parts a religious prejudice? Suppose I founded a religion in which the covering of the body in public was banned during the holy month of July could I demand that my co-religionists not be harassed by the police on Brighton beach? Ah – the power of the thought experiment.

  2. OK – first rule of blogging – do your research first. This from the CPS website

    Outraging public decency (OPD)

    At common law it is an offence to do in public any act of a lewd, obscene or disgusting nature which outrages public decency. Although this may be widely interpreted, most cases will involve indecent exposure of the human body. If conduct falls within the scope of a statutory offence, such as exposure contrary to section 66 of the Sexual Offences Act 2003 (see above) it is better practice to charge that offence unless, exceptionally, the offence merits a higher penalty than that available in relation to the statutory offence. OPD is triable either way and there is no maximum penalty.

    The requirement for the behaviour to ‘outrage’ public decency was said by Lord Simon in Knuller (Publishing, Printing and promotions) Ltd v DPP to: “go considerably beyond the susceptibilities of, or even shocking, reasonable people”. The circumstances surrounding the conduct will need to be carefully considered. A naturist whose intention is limited to going about his or her lawful business naked will not be guilty of this offence.

    It is interesting to compare the practical empiricism of English (and Welsh) Common Law with the prescriptive approach of the French (Napoleonic) Code civil des Français.

    So in England and Wales the process would be as follows. Some member of the public would need to declare that they are outraged, then the circumstances considered (Brighton beach is one thing – Cheltenham Waitrose quite another) and then a pragmatic decision made.

    English and Welsh position is that the police would need to be responding to a public complaint of real distress then consider the circumstances and make a considered judgment on the spot – ordering the accuse to “cover up” and, if this was not done, to remove the accused from the scene in order to protect public order. This decision by the police officer would need to be confirmed or rejected by careful consideration before prosecution.

    Returning to the burkini issue. In England and Wales the police will not intervene unless a person on the beach claims that the sight of a fellow citizen fully dressed on the beach is offensive. That would be a problem for me because I have been known to sit in a deck chair on a beach dressed in a suit and wearing socks and black shoes.

    A victory for English and Welsh common sense over French intellectualism I believe.
    But it is still possible to be a secularist within English and Welsh Common Law without the imposition of laicité. I don’t want a secular republic I want secularism to be seen as a protective principle much like the principle of equality of all citizens under the law – indeed I see secularism as integral to the principle of egalité.

    • “OK – first rule of blogging – do your research first. This from the CPS website.”

      Eh??? The post was about the various French burkini bans and was a report based on the ruling of the Conseil. The views of the CPS on prosecutions for outraging public decency were simply not to the point in that context because I wasn’t attempting an exercise in comparative law. So what did I do wrong?

      If I may say so, it’s verging on the offensive: we’re writing a blog, not the first draft of the next issue of the Ecclesiastical Law Journal.

      • Hello Frank,

        I think Alan Rogers was responding to his first response, in which he engaged in a thought experiment regarding religously mandatory public nudity in July in the UK. Having not done any research on the matter before posting his response, he then did so and found why that would attract prosecution. So his “do your research first” line reads to me as criticism of himself rather than of your (excellent) blog.

  3. Alan – you are entirely correct. It is far too easy (at least for me) to react to a blog by rushing to reply. I have resolved to give myself at least 24 hours to think and if necessary read before responding.

    • Then perhaps I should take all the comments down on that one! (And perhaps I was a bit waspish in response, for which I apologise.) But it did make me think hard about what we do and how we do it, so – paradoxically – it turned out to be quite helpful.

  4. Frank, My fault entirely I should have written “I should do my homework first” instead of the more ambiguous “Do your homework first”. Interesting how speech English differs from written English. I remember being warned of this 65 years ago by an English teacher.

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