Will Judges Ever Banish Misconceptions?

The courts still have a long way to go in explaining how they operate if the reaction to a couple of high-profile rulings towards the end of last week is anything to go by.

On Wednesday, the Outer House of the Court of Session (roughly equivalent to the English High Court) refused to grant an interim interdict (a temporary injunction) ordering the BBC not to broadcast the debate between the leaders of the three main political parties in the UK unless it featured, “on equal terms”, a representative of the Scottish National Party.

The judge, Lady Smith, said she had to decide whether there was an arguable case that the BBC had disregarded its own internal guidance on impartiality. “I cannot conclude that such a case is made out, she said in her ruling. “The information before me shows that [the BBC has] planned coverage of the [SNP’s] campaign …which appears to be of substance and cannot be said to be lacking in impartiality.”

Turning to the SNP’s delay in challenging a decision made by the BBC as long ago as last December and on which the SNP had taken a view in February, Lady Smith said the SNP had not given any satisfactory explanation for not bringing its challenge after it had assessed the effect of the first debate two weeks earlier.

She continued:

Delay is particularly significant in this case because whether one compares the debates to three rounds of a boxing competition, a three course meal, a play in three acts or any similar convenient analogy, the planned event that is the series leadership election debates is now two thirds of the way through and has, thus far, taken place according to plan. The order that the petitioners seek would, whatever happens, result in wholesale disruption of that plan.

Writing in the Guardian, Sir Simon Jenkins completely misunderstood the judge’s remarks when he reported that Lady Smith had

declared herself delighted with the coverage. The series, she said, “has thus far taken place according to plan”. She agreed with the BBC lawyer that involving the SNP in such debates would be “completely contrary to the public interest”. She is clearly no nationalist.

The phase “completely contrary to the public interest” does not appear in the judgment. The closest Lady Smith gets to it is where she says:

The order that the [SNP] seek would… deprive the public, possibly the whole of the UK public, who are anticipating being able to complete their viewing and consideration of the whole series of debates tomorrow, of the opportunity to do so. It would, on the face of matters, leave them with an incomplete picture. That would hardly accord with proper, well ordered administration.

Jenkins’s comment produced an immediate response from a senior official in the Scottish court service, clearly writing with the judge’s approval.  In a letter to the Guardian, Elizabeth Cutting said:

The inference that could be drawn from such remarks would appear to be that Lady Smith’s judgment was biased or motivated by her political allegiance. Such an assertion raises serious concerns about judicial independence which are both ill-founded and inaccurate.

Cutting’s letter was not particularly well expressed but it was a refreshing sign that judges – in Scotland, at least — are not prepared to let ill-informed criticism go unchallenged.

Any judge hearing an application for judicial review is not being asked how he or she would have taken the decision under challenge – in this case, whether the SNP should take part in the leaders’ debate. The question for the judge is whether the decision-maker has acted fairly – or, in this case, impartially. Judicial review deals with methods, not merits. Surely people have understood this by now?

Perhaps not. Last week, Lord Justice Laws refused to grant a Christian counsellor permission to appeal against the refusal of his claims for unfair dismissal and religious discrimination. Gary McFarlane had been dismissed after it became clear to his employers that he had no intention of counselling same-sex couples on sexual matters.

Lord Justice Laws took the unusual step of giving a fully-reasoned ruling, in part because the former Archbishop of Canterbury, Lord Carey, had made a witness statement in support of McFarlane’s application.  In it, Lord Carey had said:

I wish to dispute that the manifestation of the Christian faith in relation to same-sex unions is “discriminatory” and contrary to the legitimate objectives of a public body.

Lord Carey’s statement revealed his misunderstanding of the law, Lord Justice Laws said.

In cases of indirect discrimination … the law forbids discriminatory conduct not by reference to the actor’s motives, but by reference to the outcome of his or her acts or omissions. Acts or omissions may obviously have discriminatory effects – outcomes – as between one group or class of persons and another, whether their motivation is for good or ill; and in various contexts the law allows indirect discrimination where… it can be shown to have justifiable effects.

Turning to the broader issues, Lord Justice Laws continued:

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 [the human rights convention] 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.

As he explained:

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… is deeply unprincipled. It imposes compulsory law… to give effect to the force of subjective opinion…

Lord Justice Laws continued:

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…

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.

Strong stuff. But it cut no ice with Lord Carey. He was quoted as saying that the ruling

continues a trend on the part of the courts to downgrade the right of religious believers to manifest their faith in what has become a deeply unedifying collision of human rights.

It heralded a “secular” state rather than a “neutral” one. And while with one hand the ruling seeks to protect the right of religious believers to hold and express their faith, with the other it takes away those same rights. It says that the sacking of religious believers in recent cases was not a denial of their rights even though religious belief cannot be divided from its expression in every area of the believer’s life.

I’m with Lord Justice Laws on this one. But what I’d really like to see is Lord Carey taking the judge’s points on board and dealing with them specifically. Or does he really want Britain to become a theocracy?

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