Thursday, 29 April 2010

more from the McFarlane judgment

In his judgment, Lord Justice Laws said this…

20. …But they do not confront deeper concerns expressed in Lord Carey’s statement and in Mr Diamond’s argument. These are to be found for example in the references to an alleged want of understanding or sensitivity on the part of the courts in relation to the beliefs espoused by Lord Carey and others: “a lack of sensitivity to religious belief” (paragraph 10 of the witness statement).

21. These concerns are formulated at such a level of generality that it is hard to know precisely what Lord Carey has in mind. Broadly, however, the argument must be that the courts ought to be more sympathetic to the substance of the Christian beliefs referred to than appears to be the case, and should be readier than they are to uphold and defend them. The beliefs in question are not specified by Lord Carey. Since his statement is given in support of the applicant’s case, it must be a fair assumption that they include what is expressly stated at paragraph 21 of Mr Diamond’s skeleton argument of 23 December 2009:

“To the religious adherent ‘Religion’ is the route to salvation:-

  • The fear of hell is central to the appellant’s religious belief; and individuals ought to be informed of the consequences of hell;
  • The proposition of the appellant’s religious belief is that sin will have eternal consequences. Those who do not repent will go to hell when they die…”

22. In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society.

23. The first of these conditions is largely uncontentious. I should say a little more, however, about the second. The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy. And the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.

24. The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

25. So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.

You can learn something more about Paul Diamond by reading this interview with him in last week’s Church Times.

Posted by Simon Sarmiento on Thursday, 29 April 2010 at 11:31pm BST | TrackBack
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Categorised as: equality legislation
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“To the religious adherent ‘Religion’ is the route to salvation:-

•The fear of hell is central to the appellant’s religious belief; and individuals ought to be informed of the consequences of hell;

•The proposition of the appellant’s religious belief is that sin will have eternal consequences. Those who do not repent will go to hell when they die…”

Isn't it illegal to make threats against other people? I don't see much difference between 'If you don't do this I will send in the heavies to beat you up' and If you don't do this you will go to hell?'

Posted by: Richard Ashby on Friday, 30 April 2010 at 8:46am BST

More about Paul Diamond here:
http://www.barcouncil.org.uk/aboutthebarcouncil/meetings/agmofthebar/AGM07MINS/ (Scroll down to 5. Resolutions)
This all relates to an article he wrote back in 2005 (I think?) and the legal cases that arose as a result of the Bar Council's reaction to it.

I cannot yet find the article in question nor the judgments that followed, but the resolutions Paul Diamond places before his own professional body and the debate that follows give an interesting insight into this lawyer.

Posted by: Martin Reynolds on Friday, 30 April 2010 at 8:55am BST

Here is a further report on the Bar Council episode
http://www.churchtimes.co.uk/content.asp?id=37580

Posted by: Simon Sarmiento on Friday, 30 April 2010 at 9:04am BST

The following is from guidance to Local Government employees in the run-up to the General Election. As a Christian, I would have no problem if the word "political" was replaced by "religious". I would still consider it a reasonable requirement and I am sorry there are Christians and former archbishops who dont see it that way.

"The Code of Conduct for Staff, which applies to all employees of the Council, requires that in our work we must maintain political neutrality. As individuals we are all entitled to hold political views but as employees of the Council we must not allow those views to impinge upon our work.

If your post is politically restricted then you are prevented from standing as a candidate for election. You can, though, resign your employment to stand.

Regardless of whether or not you are politically restricted you must not allow your own political opinions to influence or interfere with your work."


Posted by: Terence Dear on Friday, 30 April 2010 at 9:43am BST

Paul Diamond means well but a different approach might work at least as well in terms of winning cases. The art of advocacy is to persuade, not crusade.

His defeat at the level below Lord Justice Laws is explained at http://www.emplaw.co.uk/content/index?startpage=data/2010irlr196.htm

Sir Nicholas Underhill says at paragraph 14:

"It is convenient at this stage to refer to the way in which the Claimant's case was argued before us. Mr Diamond opened the appeal but confined himself to what in his skeleton he characterised as "Submissions on Human Rights Law" based on art. 9 of the European Convention of Human Rights: those submissions were at a high level of generality and not closely related to any analysis of the particular issues on the appeal... it would have been helpful to have had a structured analysis of the key authorities, cross-referred to the particular issues arising on this appeal. That is not something which Mr Diamond offered us..."

Posted by: badman on Friday, 30 April 2010 at 9:52am BST

thanks, badman.
The underlying URL is
http://www.bailii.org/uk/cases/UKEAT/2009/0106_09_3011.html

Posted by: Simon Sarmiento on Friday, 30 April 2010 at 10:01am BST

"The law of theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the state, if its people are to be free, has the burdensome duty of thinking for itself" - Lord Justice Laws -

Unless the British state is a theocracy, which it manifestly is not - despite the present alignment between State and the Church of England - what the Lord Justice is saying here is pretty clear, even to me. Democracy demands government by the people for the people, and as the judiciary is separate from the peculiar State/Church relationship, this is how U.K. citizens are legally governed - by rule of Law, not by the Church.

One of the problems of the primacy of Canterbury being 'inter pares' with other Anglican Churches around the world which are not governed by the exigencies of the Church of England, is that any prejudicial attitude against any sector of society obtaining through Church/State relationships in the C.of E., is apt to 'rub off' onto the other Provinces of the Communion - which have their own state laws to honour and obey.

The only theocracies which exist in the world at the moment would appear to be Muslim. Does the Church of England need to establish its own theocracy in the U.K.?

Posted by: Father Ron Smith on Friday, 30 April 2010 at 10:27am BST
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