R v Brown – twenty four years on, a critical secular perspective (part 2)

Handcuffs

In his second and concluding article about the notorious case of R v Brown, LSS member Dr. Peter Bowen-Walker makes the case for a secular legal system.


In Part 1 the attention of the reader was drawn to comments made recently by the Lord Chief Justice, Lord Thomas, who opined that the courts were largely secular in nature and that where in the past judges had allowed religion to influence their reasoning they may have “[got] themselves into difficulties”.

This concluding article argues that the controversial judgment in R v Brown [1] can be better understood if it is viewed as one of those judgments where unconscious religious bias clouded the normally objective and rational views of respected judges.

Viewed from a secular perspective, the intemperate moralistic and paternalistic language, the comments on seemingly irrelevant but emotive matters (such as bestiality), the clearly expressed indignation and disgust of their Lordships, and the unjustifiable catastrophising (despite lack of evidence), can all arguably be explained by the culture-shock experienced by these “establishment” men when their “establishment” morality was offended.

When the socio-cultural milieu of these judges is considered, it is evident that religion, and in particular the Anglican religion (with its homophobia and arguably irrational views on sex) played a role, and still does play a role, in the day to day lives of judges and the courts despite recent pronouncements to the contrary.

It will not be argued that their Lordships were explicitly homophobic or biased, but since the decision in R v Brown eventually came to be decided as a matter of public policy and on what was “in the public interest” rather than through an interpretation of the black letter law, then what “maketh the man” (the underlying values and unconscious biases) matters.

It will be argued that when it comes to matters of public policy and what is “in the public interest”, judges should respectfully adhere to a basic principle of the rule of law, and not their seemingly religiously-inspired instincts, namely they should find in favour of the defendant not the Prosecution and therefore not criminalise people where there is an unsettled point of law. It is clear in the case of R v Brown that their Lordships were on the cusp of making such a libertarian-inspired decision but – by a narrow margin – I will respectfully argue that their fear, prejudice and irrationality got the better of them and that three of the five judges resorted to making a moralistic judgment. Where did this prejudice come from? From a secular perspective it could be argued it came from the omnipresence of the State religion in the lives of our “establishment” figures and in the day to day workings of our courts.

To recap Part 1

R v Brown was a case which appeared before the House of Lords in 1993 in which a number of gay men were found guilty of causing ABH during sadomasochistic (SM) sexual activity.

The activity had in fact been ongoing for more than ten years and the participants had “positively wanted, asked for, the acts to be done to them” [2], and all had consented to being involved.

No complaint was ever made to the police, who only became interested because of unrelated enquiries which drew the SM activities to their attention.

The video material seized by the police documenting the SM activity was originally interpreted by them as “snuff” videos depicting the murder of individuals during the course of sexual violence [3]. It is now known that this was incorrect, but in fairness, this was clearly an understandable early consideration which of course justified further investigation.

However, the enquiry went on to cost an estimated £4 million [4] and some critics have argued that this expenditure may account for the determination (and possibly creativity) of the authorities to proceed with the prosecution, to save face and justify the cost. Support for the veracity of this claim can even be found in several passages from the judgment itself which questions as “adventitious” the use of the Offences Against the Person Act 1861 (OAPA) as a “statute…clearly intended to penalise conduct of a quite different nature” [5], [6], [7].

The men were found guilty at first instance of various offences (mainly ABH). The verdicts were upheld on appeal, but the sentences were reduced [8].

The main question certified for consideration by their Lordships was whether the fact that all the participants had consented to taking part in the SM activities provided a defence against the charges of ABH.

The answer was a 3:2 “no”; a close call which ossified the law and which has been widely criticized for what was perceived to be hetero-normative bias (or to be more forthright, homophobic bias). Since then, the judgment has been criticized further because of the other unintended and unforeseen consequences it has had.

When the case was appealed in the European Court of Justice, the charge that the judgments had been motivated by homophobia was dismissed [9]. The European judges held the convictions were safe and within the wide margin of discretion available to a member state to protect health or morals.

Nevertheless, the language used by their Lordships indicated, if not direct homophobia, then possibly indirect homophobia, and at the very least a deep seated “discomfort” with the lifestyles of the defendants and the material they were asked to consider in the course of their judgment.

Indeed, in a commentary on this judgment, Carl Stychin concluded the law “pathologises gay male sexuality” [10]. Examples of the language which revealed the shock and resulting moralising include the following:

Lord Templeman: SM is “degrading to body and mind”; “society is entitled and bound to protect itself against a cult of violence”

Lord Jauncey: “rather curious activities”

Lord Lowry: “[SM's function is] to satisfy a perverted and depraved sexual desire. SM homosexual activity cannot be regarded as conducive to the enhancement or enjoyment of family life or conducive to the welfare of society. A relaxation of [the law] can only encourage the practice of homosexual SM, with the physical cruelty that it must involve (and which can scarcely be regarded as a ‘manly diversion’)…”

Lord Mustill: “It is sufficient to say that whatever the outside might feel about the subject matter of the prosecution — perhaps horror, amazement or incomprehension, perhaps sadness — very few could read even a summary of the other activities without disgust”; “If repugnance to general public sentiments of morality and propriety were the test, one would have expected proceedings in respect of the most disgusting conduct to be prosecuted with the greater vigour”; “Thus, whilst acknowledging that very many people, if asked whether the appellants’ conduct was wrong, would reply ‘Yes, repulsively wrong’.”; “Leaving aside repugnance and moral objection, both of which are entirely natural…”

Lord Slynn: “Nor is it necessary to refer to other facts which are mentioned in the papers before the House which can only add to one’s feeling of revulsion and bewilderment…”

According to evidence gathered by the Law Commission [11], the consequence of the R v Brown judgment has been inter alia to lead to uncertainty concerning the law in this area, with many respondents indicating their surprise that some SM activities are illegal.

It was contended that the oppressive effect of the judgment had also led to at least one death [12] and that it stigmatizes and vilifies the not insignificant numbers of SM practitioners. Whilst it is difficult to obtain statistics for the precise numbers of people who engage in SM, studies have indicated that between 5 and 22% of the population [13] may be involved to some extent (including members of the judiciary [14] and some well-known individuals [15]). Another concern expressed was that it exposed people to the risk of blackmail [16].

Furthermore, the law as it currently stands was believed to have led to the hindering of police investigations [17] because potential witnesses are reluctant to come forward.

Evidence was also given to the Commission that the current law might endanger the safety of SM practitioners because many felt unable to access information and to educate themselves of the dangers due to the stigma or risk of prosecution, and were compelled to turn to practicing risky activities unaccompanied [18], [19].

Other evidence suggested that on the rare occasion medical assistance might be required, people could be deterred from seeking help.

In addition, evidence was given that the current law was in fact given a “low priority” for enforcement by the police [20], but has it attained the position of being a “dead letter”?

This latter question is perhaps partly answered in the affirmative by the outcome of the recent case of R v Lock [21], in which a man was found not guilty by a jury after “contracting” with a woman to engage in SM activity which resulted in her suffering ABH. Of course, being found not guilty is not the same as the activity itself being lawful according to the letter of the law.

So despite the “public policy” reasons cited in the judgment, the benefits to the public at large do not appear to have been realised. Indeed, it could be argued that very significant problems and undesirable consequences have resulted as a direct consequence of the way the law fell to be decided in R v Brown.

The general position

Provided no harm is caused, SM activity in private between consenting adults is not unlawful.

The law concerning the application of unlawful but non-fatal force against a person arguably falls along an inelegant continuum. The law in this area comes from several acts and common law principles, the most significant one being the OAPA which has been widely criticized (including in R v Brown) as difficult to interpret and as “piece-meal legislation”, and covering a “rag-bag of offences” [22].

The spectrum begins at one end with an offence arising from the mere reasonable apprehension of the deployment of unlawful force; then, to the actual infliction of force resulting in no harm; then, to the use of force resulting in some harm (which can be a mere mark, or bruise (ABH)); and finally, to force resulting in serious harm (GBH). A person performing any of these acts is committing an offence, and the law rightly protects citizens from such unwelcome intrusions and harms.

Yet, if the law were to be left at that, many desirable and indeed vital activities would be rendered unlawful, such as surgery or hair-cutting. So the law has developed a number of mechanisms to widen the ambit of activities involving the application of force by one person against another, to remove the constraint of the starting point and to enable them to proceed in the public interest. Consequently, the law identifies a number of “exceptions” to the general rule which permit, with the valid and informed consent of the person, that physical force can be applied against them lawfully.

The activities included within the “exceptions” list are there because of the workings of public policy: the activities are considered to be of benefit, or in the public interest. The activities include some predictable ones but also some rather surprising ones:

  • Boxing and martial arts [23]
  • Religious flagellation (whipping/flogging) or mortification [24]
  • Tattooing and even branding one’s wife’s buttocks with one’s initials using a hot knife (deemed to be of the same species of action, see R v Wilson [25])
  • Ritual male genital mutilation (circumcision)
  • Heterosexual sado-masochism causing harm of a trivial and trifling nature (provided it is not long lasting) within the context of a marriage
  • Ear/eyelid/lip/genital piercing, provided it is for decorative purposes and not sexual gratification [26]
  • Having a haircut [27]
  • Surgical intervention (such as amputation, mastectomy, etc.) [28]

In addition to the defence of consent being available for the above activities, consent can also be given as a valid defence to “running the risk” of being harmed in the following circumstances:

  • Consenting to the risk of contracting a potentially fatal sexually transmitted disease (such as HIV) during intercourse [29], [30]
  • Consenting to the risk of injury during potentially dangerous contact sports [31]
  • Consenting to the risk of serious injury during potentially dangerous “manly diversions” and rough horseplay – the “belief” that consent was given is enough (it doesn’t even need to be a reasonable belief: just an “honestly held” belief is sufficient [32], [33])
  • Consenting to the risk of injury during dangerous exhibitionism (driving a motorbike through flames, knife-throwing displays and team acrobatics, etc.) [34]

So the law is construed so as to attempt to protect people from being subjected to unlawful physical interventions and assaults, but it is flexible enough to accommodate activities and actions which society might deem necessary or desirable. The list of “exceptions” is not a closed list and judges are at liberty within the constraints of the doctrine of precedence to widen the list.

It was precisely this – a request to include consensual homosexual sado-masochistic sex within the list of “exceptions” – to which the defence of informed consent by sui juris adults could be deployed in the event of harm that R v Brown was concerned with.

When the lists above are considered (together with the rule of law principle not to criminalise where the law is unclear), it may therefore seem surprising that their Lordships refused to invent a “consent” defence for homosexual sado-masochistic sex. This is especially so, given the warning by Lord Devlin who stated “…a law that appears to be arbitrary and illogical, in the end and after the wave of moral indignation that has put it on the statute book subsides, forfeits respect.” [35]

Surprising that is, until the personal biases (informed by prevailing social context) are recognised and considered.

Criticisms of the judgment in R v Brown

The judgment in R v Brown has been widely analyzed, and it is fair to say it has been widely criticized. One criticism made of the prevailing judgment was that the bar for the availability of the defence afforded by valid consent in the context of homosexual SM was set at too low a level (below ABH), which rendered the defence of consent unavailable to the defendants in this case.

Another criticism made was that the judgment was too moralistic and that it was informed by underlying homophobic or hetero-normative values held by the judges. One commentator waspishly stated the outcome of the case was as a result of the acts being contrary to Lord Templeman’s personal morality, not the law of England and Wales[36]. Another blog opined that the judgment was “unpleasant” and followed a homophobic “witch-hunt” pursued by the police [37].

A third criticism is that because of the way all common law develops, the area of law surrounding consent is something of an illogical and disconnected mess requiring reform. Their Lordships themselves pointed out that the appropriate authority for such a task was Parliament and not the judiciary. Looking at the disconnected and seemingly ad hoc list of exceptions, it is easy to understand the court expressing this reservation.

Both the Law Commission and the Government in 1998 published proposals to reform the OAPA. The Law Commission’s suggestion would have seen consent become available as a defence in cases of SM provided the harm was not “serious”. However, sixteen years or so later nothing has been done. Clearly the Government lacks the will or the courage to change the law, despite it being generally held to be confusing, lacking in coherence and causing a number of serious and undesirable consequences.

What factors influenced the reasoning of their Lordships? Do they keep the common law relevant today?

1. Homosexual SM was to be viewed as a form of violence where harm was intended or caused, and not as a sexual matter.

This contrasted with the availability of the defence to married heterosexuals if one of them inflicted ABH on the other (e.g. when branding a wife’s buttocks with a hot knife), which was held to be a private matter and as such, prosecution was not in the public interest [38]. Notwithstanding, consent would fail as a defence even in a heterosexual SM encounter which led to ABH if the activity itself was illegal (see R v Donovan [39], which involved the defendant spanking a 17-year old girl for sexual gratification), or if the harm was serious [40].

This position has been widely criticised for failing to understand the meanings ascribed by participants of SM activity as intrinsically a form of sexual expression and not violence [41], [42]. This further highlights the general criticism leveled at the judiciary in general that their incredulity and incomprehension stemmed from their being drawn from a certain narrow socio-cultural (or religious) mindset class, and being “out of touch”.

2. The proposition that SM was “essential to the happiness” of some people was denied by their Lordships because no evidence to support this was adduced (although a report available to the judges produced in 1963 by Prof. Hart in response to the Wolfenden Committee proposal had stated that laws restricting sexual behaviour “may create misery of quite special degree” because sexual impulses formed such a strong part of each person’s day to day life that their suppression could affect “the development of the individual’s emotional life, happiness and personality” [43].

At the time of the judgment SM was classified by psychiatric experts as a “paraphilia” (atypical sexual disorders considered a form of mental health problem) [44], whereas today this is only the case if the person is distressed about their atypical sexual interest or if they can only derive pleasure from another person’s distress or suffering [45].

Modern scientific thinking is understandably anxious to separate genuine mental disorders of a sexual nature from violent sexual acts which are better described as rape etc, and which should not be given the cover of a mental health diagnosis [46]. Were the judges influenced by the prevailing psychiatric thinking (despite their Lordships’ lamenting, unlike Parliament they had no access to external experts and reports etc)?

3. Homosexual SM posed a “proselytisation” danger to young men and could lead to their “corruption”.

In relation to this point, the appeal court judgment noted that one of the participants, “K”, had moved from the homosexual SM scene to “settle into a normal heterosexual relationship”. However, beyond that comment, the judgment seems to descend into an exercise of “catastrophising” which was then used as a reason to justify taking a paternalistic preventative approach by refusing the defence of consent.

This can also be seen in relation to their Lordships’ concerns about the perceived difficulty of “foretell[ing] the degree of bodily harm which [could] result” during SM encounters. Homosexual SM activities were also said to carry with them “obvious dangers of serious personal injury and blood infections”, with HIV/AIDS being specifically mentioned.

Given the widespread fear in the 80s and 90s of HIV, and given the prevalent homophobia [47], (the infamous Clause 28 was passed in 1987 [48]), it is little wonder that these matters would have been uppermost in the minds of their Lordships. But it has since been held, in a heterosexual context, that a person can consent to running the risk of contracting a fatal sexually transmitted infection [49]. Moreover, for this reasoning to stand, it required that their Lordships ignored the fact that the appellants had been engaged in these activities for some ten years, and that no evidence was adduced to indicate any of the participants had suffered the type of harm or infections which exercised their Lordships. No comment was made on why homosexual SM encounters could be justifiably assumed to pose more of a danger to participants than heterosexual SM encounters.

The case of R v Slingsby [50] also later suggested that, in fact, heterosexuals could participate in sexual activities which the participants didn’t believe were risky (“fisting”) and that consent was a defence, despite accidental blood poisoning resulting in the death of one of the participants.

It is little wonder that people today remain a little confused as to the law in this area given that judgments appear to be peppered with illogical, potentially prejudicial, certainly outdated and arguably conflicting paternalistic and moralistic reasoning.

4. According to their Lordships, public policy (not law) required that society be protected unless there was a “good reason” for the harm [51].

Since public policy reasoning is often no more than an exercise in judges imposing their own personal and moral values on the resolution of the cases in front of them then, I would respectfully suggest they should have been guided by one of the principles of the rule of law: namely, in the exercise of “criminalising”, the balance should fall in favour of the defendant and not the Prosecution if there is doubt. In this case, even the judges pointed out that Parliament would be the appropriate forum for resolving questions concerning the legality of SM. But despite their own reasoning they decided “against inventing a defence of consent” in this context.

Interestingly, no evidence was presented to the court that indicated SM was an activity growing in popularity, and they dismissed the fact that the participants were discreetly (secretly in fact) involved for a decade with no complaint from the general public.

5. That “the difference between ABH and GBH can not be applied by a jury” so they would not be able to “determine acquittal or conviction”.

Doesn’t the same issue arise in relation to the application of the OAPA in normal assault cases?

6. Drink and drugs were involved in securing the consent and increasing the enthusiasm of the participants.

Whilst this was a fact, the construction of the OAPA makes no mention of alcohol or drugs being an element in the offence of ABH and whether consent was good. Indeed, in other cases, such as R v Aitken [52], alcohol was involved but its significance was de-emphasized as merely an element in the context of rough horseplay or manly diversions. On this issue of the role of alcohol in vitiating consent, there appears to be little logical consistency in how it is applied and this may point more to the judges casting around for reasons to support their decision rather than them resolving difficult issues by a true construction of the law.

7. The SM practices of the appellants were held to be “degrading to body and mind”.

These comments appear to reach out to the “harm” principle as a means of justifying the judgment on liberal principles, but just as there was no evidence of SM being essential to the happiness of practitioners, so too there was no evidence that SM was any more dangerous to the bodies or minds of the participants than other activities held to be lawful, such as boxing, religious flagellation or consenting to the risk of contracting HIV by having sex with an infected person.

8. At one point in his judgment, Lord Templeman stated: “Cruelty to human beings was on occasions supplemented by cruelty to animals in the form of bestiality”.

Whilst bestiality is indeed an abhorrent crime which should rightly be condemned on animal welfare grounds and on public health grounds [53], [54] (to prevent zoonotic diseases entering society), this statement conflated another illegal act with the issue which was actually under consideration. Bestiality was illegal by virtue of s.12 Sexual Offences Act 1956 and would have had no significance in determining the certified question. But it does serve to emphasize the degree of moral indignation and inflamed sense of disgust the judges were having to grapple with. Perhaps this sheds some light on the psychological state of mind of their Lordships, who had been exposed to graphic descriptions in the course of their deliberations?

9. Adding further weight to the point that their Lordships were by this time quite disgusted by the subject matter under consideration, they went so far as to comment that the “activities of the appellants (were not) exercises of rights in respect of private and family life”.

It was just too much for their Lordships to equate what they had read about with “family life”. On balance, the ECtHR accepted that private and family rights could have been engaged but that the State had acted within its margin of appreciation in how this was applied [55].

10. Homosexual SM was held to be a “cult of violence” and an “evil thing”.

A reader could be forgiven for thinking these comments – in the context of consensual activities – were more likely to emanate from a Bishop than a Lord Justice.

Indeed, it is the contention of the author that religion played a far greater role in the outcome of this judgment than has been recognized. It is not contended that their Lordships were explicitly biased, but instead that their worldview, values and outlook were informed and guided by the nation’s Christian or Anglican state religion and its pervasive influence.

Evidence of the established church in the law? (Vicarious rule of the church)

Even if evidence can’t be conclusively provided that the judges were influenced by religion directly, the following associations their Lordships had with religion are a matter of public record:

The Register of Lords’ Interests for 1996 held “nil” returns for all their Lordships, but in the 2003 register [56] the following entries were made:

JAUNCEY OF TULLICHETTLE, Lord –

Office-holder in voluntary organisations – Chancellor of the Diocese of St Andrews, Dunkeld and Dunblane in the Episcopal Church in Scotland

Trusteeships – Ex Officio trustee of two charitable trusts providing: holiday accommodation for clergy and their families

SLYNN OF HADLEY, Lord –

Membership of public bodies – Prior, Priory of England and The Islands Order of St. John

Lord Templeman also served on the Ecclesiastical Committee of Parliament between 1992-2001 [57] and was described as showing “bias and ineptitude” and a lack of understanding of “the seriousness of the problem facing the church” in relation to the ordination of women in the Church of England [58].

In a recent speech, the President of the Family Division, Sir James Munby, made the following comments (emphasis added):

“Only a little over a century ago, in 1905, a judge in a family case could confidently opine that the function of the judges was “to promote virtue and morality and to discourage vice and immorality.” So the purpose of the law was the enforcement of morals. And that morality was, of course, Christian.”

“Standing back from the detail, three features [...] are striking. First, enthusiastic adherence to the view that the function of the judges was to promote virtue and discourage vice and immorality, secondly, a very narrow view of sexual morality, and, thirdly, the dominant influence wielded by the Christian churches.”

“The moment at which the world changed can, in fact, be identified [..]. The last hurrah of the ancien regime was [...] the famous – or infamous – decision in 1961 of the House of Lords in Shaw v Director of Public Prosecutions, for it marked the end, even if not recognised at the time, both of the ancien regime in matters sexual and of the pretension of the judges to set themselves up as guardians of public morality.

“Judges are no longer custos morum of the people, and if they are they have to take the people’s customs as they find them, not as they or others might wish them to be.”

“We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority. Although historically this country is part of the Christian west and, although it has an established church which is Christian, we sit as secular judges serving a multi-cultural community of many faiths, sworn to do justice ‘to all manner of people’. We live in this country in a democratic and pluralistic society, in a secular State not a theocracy.

Religion – whatever the particular believer’s faith – is not the business of government or of the secular courts, though the courts will, of course, pay every respect to the individual’s or family’s religious principles.”

“Within limits the law – our family law – will tolerate things which society as a whole may find undesirable.” [59]

To a secularist like myself this speech was well received but, predictably, not everyone agreed [60], [61].

Even a cursory glance at the day to day workings of the courts today might suggest that they are not as secular as Sir James might rightly hope they are. For example, when judges are sworn in they take two oaths which are together known as the judicial oath; both involve the phrase “I, do swear by Almighty God that…” [62]

Jurors are regularly sworn in with an oath that begins “I swear [by almighty God/by Allah/by Waheguru/on the Gita] that…”; and witnesses and defendants regularly pledge to tell the truth via a similarly “Godly” formula provided for in law [63].

At the start of the legal year judges are invited to a church service in Westminster Abbey, a tradition which “dates back to the middle ages when judges prayed for guidance at the start of the legal term [...] The [...] service [...] is conducted by the Dean of Westminster [...] and includes prayers, hymns, psalms and anthems; the Lord Chancellor reads a lesson.” [64]

Add to this the twenty six Bishops (or “Lords Spiritual”), who are involved in making laws for people of all faiths and none, and who at one time rubbed shoulders with our most senior judges in the Lords, and it is not difficult to see why Sir James Munby’s speech was received with some wide-eyed skepticism.

So do we have secular courts or not, and did the secular nature of courts really come to exist overnight in 1961 in a punctuated equilibrium, or has there been a gradual and imperfect creep towards a more secular and inclusive judiciary?

In the opinion of the author the R v Brown judgment certainly puts us on notice that religious ideas could conflict with modern values and ways of living and that there is a danger that judges could reach less than values-neutral conclusions, especially when they are compelled to conclude on the basis of public policy and what is in the public interest.

The R v Brown subject matter of homosexual SM was obviously a challenge to the emotional equilibrium of their Lordships, who were clearly neither homosexual nor SM practitioners. Indeed, such people and practices were quite alien and disgusting to them.

Chan & Gommer theorised that Lord Templeman had been caught up in the “phenomenon of group behaviour” as a consequence of which researchers have:

“shown that simple identification with a group (the ‘in-group’), however meaningless, is enough to arouse hostility towards and cause actions to be taken against an ‘out-group’ – people who are not in the ‘in-group’ and classified as such. At the highest extent, this can mean dehumanising out-group members in order to justify aggression towards them, often by perceiving their structure of values as different and wrongly so. This then, might explain Lord Templeman’s strong and horrified language declaiming sadomasochism as “evil” and “breed[ing] and glorify[ing] cruelty”. [65]

To help readers better appreciate the stifling moralistic culture which dominated the social circles of the senior judiciary around the time of the R v Brown judgment, and to help shed some light on the prevailing hetero-normative prejudice they clearly felt comfortable colluding with, the following quote may assist:

Until 1991, unmarried men and women – including gay and lesbian lawyers – were excluded from entering the judiciary. Unsurprisingly, homophobia, or at least a strong perception of it, still lingers. According to recent research by the lesbian, gay, bisexual and transgender legal group Interlaw, 70% of LGBT lawyers believe there is prejudice within the selection process for judicial office.” [66]

Indeed, even as recently as 2013, Lady Hale was inspired in a judgment to write:

“Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation… [Homosexuals] were long denied the possibility of fulfilling themselves through relationships with others.  This was an affront to their dignity as human beings which our law has now (some would say belatedly) recognised.  Homosexuals can enjoy the same freedom and the same relationships as any others.  But we should not underestimate the continuing legacy of those centuries of discrimination, persecution even, which is still going in many parts of the world.” [67]

If there is any doubt in the minds of readers that there are still influential voices within political and legal circles who want to see Christian principles and values inform the actions of our establishment leaders they need only look at the comments made by the previous Attorney-General, in which he recognised that Christianity remains a “powerful force in this country” [68]. This comment follows hard on the heels of comments made inter alia by the Prime Minister [69], Eric Pickles [70] and Baroness Warsi [71], all of whom have promoted religious influence and visibility in one way or another [72]. The new Secretary of State for Education, Nicky Morgan, went so far as to state her mission in Parliament was not to serve her constituents but to “remember the word of God and serve the Lord.” [73]

So there is little doubt that our judges, whilst independent, work in a system where the established church is not a quaint trace of history but a real presence, determined to be heard and to have an impact on our laws. Is it really any wonder therefore that judges sometimes allow their religion to get them “into difficulties” (as the Lord Chief Justice suggested)?

Would it be fair to allow their Lordships to carry the burden of responsibility alone for this judgment and its effects?

Clearly not, because there are many other actors in this drama who could have acted differently, but who were also probably informed by their personal biases (be it the prevalent homophobia, sexually repressive religious values or simply traditional family values). For example, the police and prosecution authorities didn’t have to proceed to prosecution and needn’t have worked so hard and so creatively to fit the activities of the men so tenuously to the OAPA.

Also, despite some twenty years having now elapsed since the judgment, the legislature has made no effort to remedy the defects widely identified in this judgment. Are they simply intimidated and embarrassed by the topic or do they really believe that homosexual SM should remain stigmatized and peripheral with all the attendant dangers and problems? If it is accepted that the legislature are as religious as many of them seem to keep telling us, there is little chance their personal biases will permit them to act to remedy the confusion in the law in the interests of liberal law-making.

In fairness to our most senior judges, our higher courts are constrained in their ability to seek assistance from experts, to commission reports and to request research be conducted before making a decision. Perhaps if this right were granted to our senior courts, together with the necessary resources, they might be assisted on rare occasions to make more fully-informed rulings which served the best interests of society according to the best evidence. This would avoid the veracity of stinging rejoinders such as the law being made “according to the morality of Lord Templeman”.

“Judges are not moral or intellectual giants, prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers.” [74]

Based on this starting point Chan & Gommer [75] argue that “too often judges are put on a pedestal of rationality, and as a result, we lose the opportunity to discover and understand what human factors affect judicial decisions.” Once we break through the reluctance to critically analyse the decisions made by our courts we can appreciate why some judgments, like R v Brown, appear so strange alongside other judgments and why they attract so much attention and criticism.

Chan & Gommer also state:

“…the law is written, interpreted and applied by human hands and human minds very much affected by morals and emotions…The consequence [being] that judges and legislators, whether they know it or not, will draw upon their unconscious reservoirs of experience, social norms, morals, emotions and urges when making their decisions.”

This author questions whether in cases which turn on public policy matters, and which therefore introduce questions of morality and moral judgment, unelected judges should be asked to explicitly explore and guard against any risk that they harbour bias or prejudice derived from their religious beliefs.

In a mature, secular democracy like our own, our lawmakers should guard against promoting one set of superstitious values above another. They should ensure our (otherwise decent) establishment and legal system are purged of influences which can lead to institutional bias, rather than unashamedly nurturing bias by promoting one religion or another.

Without doubt, the only approach to legislating and legal interpretation which can fairly accommodate everyone in society is a secular approach. Modern judges know it, and actively say it, and anachronistic judgments might now benefit from being re-examined through a secular lens.

Isn’t it now time for the ratio in R v Brown to be reconsidered? The moralistic and paternalistic language indicates that some of their Lordships did not decide rationally, impartially and with secular heads, but rather that their judgment appears to have been informed by high emotion and disgust, and it seems to many to have the hallmarks of being influenced by outdated religious values.

The fact remains: R v Brown isn’t a judgment that is widely respected. Indeed, one author commented: One cannot help but view their Lordships’ public policy-based reasoning as an unconvincing façade for interventionist judicial moralism”. [76]

Every student of law knows the case of R v Brown, not because of its wisdom, humanity or because it elevates the human condition, but because it is cited as an example of case law which sits uncomfortably with other cases. In addition, the whole area of consent has been opined to be ad hoc, confusing and in need of reform. The judgment itself is highlighted because of its shrill language and ultimately inappropriate moralising. Our law is better than that, but it is only better when it meets the test of fairness and impartiality, and avoids bias.

A strictly secular approach to judicial reasoning and decision-making is a safeguard our best and most senior judges recognise.


[1] R v Brown and other appeals [1993] 2 All ER 75

[2] R v Brown [1993] p.42

[3] Spanner:, SM, consent and the law in the UK. Eric Chaline in conversation with John Pendal. In Lesbian & Gay psychology review (2006) 6(3):283-287

[4] http://www.spannertrust.org/documents/spannerhistory.asp

[5] R v Brown [1993] Lord Mustill p. 37

[6] R v Brown [1993] Lord Lowry p. 23

[7] R v Brown [1993] Lord Mustill p. 25

[8] R v Brown and other appeals [1992] 2 All ER 552

[9] Laskey and others v United Kingdom [1997] ECHR 21627/93

[10] Stychin, C.F. (1995) Law’s Desire: Sexuality and the limits of justice. Routledge

[11] Consent in the Criminal Law. Law Commission Consultation paper No.139

[12] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.38

[13] Langridge, D. & Barker, M.(Eds.) (2013) Safe, Sane and Consensual: Contemporary perspectives on sadomasochism. Palgrave Macmillan. pp. 16, 62

[14] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para. 10.18

[15] Mosley v News Group Newspapers Ltd. [2008] EWHC 687 (QB)

[16] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.40

[17] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.39

[18] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.25

[19] c.f. auto-erotic asphyxiation of Conservative MP for Eastleigh Stephen Milligan http://news.bbc.co.uk/onthisday/hi/dates/stories/february/8/newsid_2538000/2538165.stm

[20] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.39

[21] R v Lock at Ipswich Crown Court (Judgement on 22nd January 2013) http://www.solicitorsjournal.com/comment/sadomasochism-unleashed

[22] Lord Lowry in R v Brown [1993] citing others at p.18

[23] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[24] Consent in the Criminal Law. Law Commission Consultation paper No.139 at paras 10.1 – 10.7

[25] R v Wilson [1997] Q.B. 47

[26] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 9.7 and part X

[27] DPP v Smith [1961] AC 290

[28] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[29] R v Dica [2004] EWCA Crim 1103

[30] R v Konzani [2005] EWCA Crim 706

[31] R v Barnes [2004] All ER (D) 338

[32] R v Aitken [1992] 4 All ER 541

[33] R v Jones (1986) 83 CR App R 375

[34] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[35] Devlin, P. (1965) The Enforcement of Morals. Oxford University press. p.2

[36] http://lexobiter.blogspot.co.uk/2010/10/thought-on-lord-templemans-judgement-in.html

[37] http://pme2013.blogspot.co.uk/2013/11/homophobia-and-b-case.html

[38] R v Wilson [1997] Q.B. 47

[39] R v Donovan [1934] 2 K.B. 498

[40] R v Emmett [1999] All ER (D) 641

[41] Weait, M. (2013) Sadomasochism and the Law pp.69-88. In Langdridge, D. & Barker, M. (eds) – Safe, Sane and Consensual: Contemporary perspectives on sadomasochism. Pallgrave Macmillan

[42] Bamforth, N. (1994) Sado-masochism and consent. CLR 1994 Sept. pp.661-664

[43] Consent in the Criminal Law. Law Commission Consultation paper No.139 at para 10.49

[44] Krueger, R.B. (2010) The DSM Diagnostic Criteria for Sexual Masochism. Arch Sex Behav 39:346-356

[45] Diagnostic and Statistical Manual of Mental Disorders. American Psychiatric Association (2013) volume 5

[46] Frances, A. & Wollert, R. (2012) Sexual Sadism: Avoiding its misuse in sexually violent predator evaluations. J Am Acad Psychiatry Law 40:409-416

[47] http://www.bsa-30.natcen.ac.uk/read-the-report/personal-relationships/homosexuality.aspx

[48] http://www.theguardian.com/politics/homeaffairs/page/0,11026,875944,00.html

[49] R v Dica [2004] EWCA Crim 1103 and R v Konzani [2005] EWCA Crim 706

[50] R v Slingsby [1995] Crim LR 570

[51] Attorney General Reference No.6 1980 [1981] EWCA Crim 1

[52] R v Aitken [1992] 4 All ER 541

[53] Beetz, A.M. & Podberscek, A.L. (eds) (2005) Bestiality and Zoophilia: Sexual relations with animals. Int. Soc. Anthrozoology

[54] Beetz, A.M. (2010) Bestiality and Zoophilia: A discussion of sexual contact with animals. In Ascione, F.R. (ed) The International handbook of animal abuse and cruelty: Theory research and application. Purdue University Press

[55] Laskey and others v United Kingdom [1997] ECHR 21627/93 at para. 41

[56] http://www.publications.parliament.uk/pa/ld/ldreg/prevreg/159.pdf

[57] http://www.parliament.uk/biographies/lords/lord-templeman/1800

[58] http://www.episcopalarchives.org/cgi-bin/ENS/ENSpress_release.pl?pr_number=93060A

[59] LAW, MORALITY AND RELIGION IN THE FAMILY COURTS. Keynote address given at the Law Society’s Family Law Annual Conference ‘The sacred and the secular: religion, culture and the family courts’ London 29 October 2013

[60] http://archbishop-cranmer.blogspot.co.uk/2013/10/sir-james-munby-high-priest-of.html

[61] http://www.lawandreligionuk.com/2013/11/01/the-president-of-the-family-division-on-family-law-morality-and-religion/

[62] http://www.judiciary.gov.uk/about-the-judiciary/oaths/ (21/8/14)

[63] s.1 Oaths Act 1978 “The person taking the oath shall hold the New Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand, and shall say or repeat after the officer administering the oath the words “I swear by Almighty God that . . . . . .”, followed by the words of the oath prescribed by law.”

[64] http://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/term-dates-and-sittings/legal-year/

[65] Chan, E.H-Y, & Gommer, H. (2011) Sexually biased case law: A biological perspective. The Original Law Review 7(4):155-171

[66] http://www.theguardian.com/law/2011/oct/06/gay-lawyers-judiciary-homophobia

[67] Bull v Hall [2013] UKSC 73 at para 52 and 53

[68] http://www.telegraph.co.uk/news/religion/11053037/Dominic-Grieve-British-Christians-forced-to-hide-belief.html

[69] http://www.theguardian.com/politics/2014/apr/16/david-cameron-evangelical-about-christian-faith

[70] http://www.telegraph.co.uk/news/religion/10475933/Britain-still-a-Christian-Country-says-Eric-Pickles.html

[71] http://www.telegraph.co.uk/news/religion/9080441/We-stand-side-by-side-with-the-Pope-in-fighting-for-faith.html

[72] http://www.newstatesman.com/uk-politics/2010/04/conservative-christian

[73] http://www.theguardian.com/commentisfree/2013/jun/27/christianity-atheism-two-sides-same-coin

[74] Richard Posner (2009) How Judges Think. p. 7

[75] Chan, E.H-Y, & Gommer, H. (2011) Sexually biased case law: A biological perspective. The Original Law Review 7(4):155-171

[76] Connor, N. A contemporary critique of R v Brown and the legal status of consensual sado-masochism http://thestudentlawyer.com/2013/03/21/r-v-brown-20-years-on/


Dr. Peter Bowen-Walker is a biological scientist, lecturer and a part-time law student with an interest in animal welfare, habitat protection and environmental law. You can read more about him here.

Image credit: http://www.clipartbest.com

Views expressed are not necessarily those of the LSS

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Speaking engagement with London Atheist Activist Group

LAAGLSS Secretary Charlie Klendjian will be speaking to the London Atheist Activist Group on Wednesday 10 September 2014.

This will be a broad talk about the work of the LSS generally, with a focus on free speech and also the LSS’s ongoing campaign against the Law Society’s practice note on “sharia succession rules”.

The talk will take place at The Devereux pub, 20 Devereux Court, Essex Street, The Strand, London WC2R 3JJ from 7pm to 10.30pm. More details are here.

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In support of Baroness Cox

Baroness CoxThe following is reproduced with kind permission of Sharia Watch UK:

Baroness Caroline Cox, a cross-bench member of the UK’s House of Lords, has re-introduced her Arbitration and Mediation Services (Equality) Bill in June of this year.

The Bill had another First Reading in the Lords on the 11th of June, and will have a second reading in the autumn.

Baroness Cox said:

“The growth of Sharia Courts and Councils in the UK is cause for deep concern. They inherently promote gender discrimination, inflicting suffering on women which would make our Suffragettes turn in their graves; and they threaten liberal democracy’s fundamental principle of One Law For All.

“To raise awareness of the seriousness of this situation, I have introduced a Private Member’s Bill in the House of Lords [Arbitration and Mediation Services (Equality) Bill] which had an excellent Second Reading on 19 October 2012 with support from all sides of the House, but was opposed by the Government on the grounds that every citizen has full and free access to the laws of the land. 

“This is manifestly untrue as many Muslim women are ignorant of their legal rights and live in very closed communities with tremendous pressure from families not to seek ‘outside’ professional help which would bring ‘Shame’ on the community.”

The first time the Bill was debated in Parliament, it received much support, and the debate can be read in full here.

Sharia Watch UK unequivocally supports Baroness Cox and will do all that we can to assist her in the passage of her Bill.

It is vital that MPs in the House of Commons are informed of the issues surrounding sharia law in the UK, and of the importance of Lady Cox’s Bill.

We ask therefore that all people who are concerned about the growth and use of sharia law in the UK contact their MP and ask that he/she consider supporting the Bill in the House of Commons.  You can find out who your MP is here.

There is information on this website that you can use to inform your MP, or you can contact Sharia Watch at contact@shariawatch.org.uk and we would be happy to help.

You can read more on Baroness Cox and her Bill here, here, and here.

The Lawyers’ Secular Society is pleased to echo Sharia Watch UK’s sentiments by unequivocally supporting Baroness Cox’s Bill and being prepared to assist her.

Sharia Watch UK was launched in the House of Lords in April 2014. LSS Secretary Charlie Klendjian delivered a speech (here) and contributed to the report “Sharia Law – Britain’s Blind Spot” which was sent to all parliamentarians in the UK.

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By keeping its sharia guidance, is the Law Society fit to represent solicitors?

Law Society

By LSS Secretary Charlie Klendjian

It’s been over four months since the Law Society published its practice note on sharia succession rules. Since then there has been some progress but unfortunately there is a good deal still to be done, as this post will demonstrate.

The Solicitors Regulation Authority (SRA)

The Law Society is the representative body for solicitors in England and Wales, and it is often referred to as a trade union. The SRA is the profession’s regulatory body and unlike the Law Society it is a public authority for the purposes of the Equality Act 2010 and it is fully bound by the public sector equality duty.

In its wisdom the SRA decided to endorse the Law Society’s sharia guidance when it issued its own wills guidance on 6 May 2014. In the very final sentence of its own guidance the SRA said:

“If you are acting for clients for whom sharia succession rules may be relevant you will find the Law Society’s practice note on the subject helpful.”

As those familiar with this campaign will know only too well, the Law Society’s practice note contains guidance which specifically discriminates against women and non-Muslims (at section 3.6):

“The male heirs in most cases receive double the amount inherited by a female heir of the same class”

“Non-Muslims may not inherit at all”

The LSS was the first organisation to call attention to the SRA’s endorsement of the Law Society’s practice note. We wrote an open letter to the SRA on 5 June 2014 asking for an explanation of its decision. On 11 July 2014 the SRA withdrew its endorsement: it updated its wills guidance and deleted the final sentence that referred to sharia.

The LSS pressed the SRA repeatedly for a written response to our letter and we eventually managed to obtain a letter from the SRA’s Chief Executive Paul Philip confirming the SRA withdrew the reference “given the concerns that have been raised”.

And this is the greatest tangible success to date on this campaign: the deletion of one sentence, from one website, and the receipt of one letter confirming it. Yes, this is what secularists classify as a success. Pretty sad, isn’t it?

In many ways it’s embarrassing and depressing to celebrate such small events but make no mistake, the withdrawal of the SRA’s endorsement was highly significant. For a public authority to endorse discrimination, and sharia, was shocking. Withdrawing its endorsement was therefore the only sensible course of action open to the SRA – although the SRA maintains in its letter to the LSS that it wasn’t endorsing the Law Society’s practice note. In my book, though, saying to an entire profession, “you will find this useful” sounds more or less like an endorsement.

Anyway, let’s not get sidetracked by the technicalities of what does and does not constitute endorsement. The important point here is that the SRA dipped its toes into piping hot sharia waters, quickly concluded it had made a huge mistake, and leapt out with something resembling dignity. I give them credit for that. If only the Law Society were as self-aware.

The Law Society

The LSS has challenged the Law Society in two open letters, here and here. Sadly, in both its responses, here and here, the then-President of the Law Society Nicholas Fluck was determined to give the LSS a crash course in the English law principle of testamentary freedom, and he simply ignored virtually all the questions in our second letter.

Throughout this campaign the LSS has never challenged the principle of testamentary freedom and we specifically told the Law Society in our second letter that we were aware of and were not challenging that principle.

The LSS fully accepts that people can be as bigoted and discriminatory as they want in their wills, and that the only legal restriction on testators is that they must provide for their dependants in accordance with the Inheritance (Provision for Family and Dependants) Act 1975.

The LSS’s concerns with the practice note are that the Law Society is giving guidance on an area that is simply outside of its remit (theology); that it is endorsing discrimination; and that it is giving sharia the credibility and respectability of a legal discipline within our jurisdiction, not only in the area of wills and succession but more generally too.

I was so disappointed by the responses of the Law Society President to the LSS’s open letters that I submitted a formal complaint to the Law Society on 18 May 2014. Mr. Fluck responded on 17 June 2014. I am bringing this correspondence into the public domain as there is much to be concerned about in the reply.

Firstly, note the tone of Mr. Fluck’s response to my point on testamentary freedom below. By the time I submitted my formal complaint I had been forced by the Law Society to over-emphasise the issue of testamentary freedom, by saying:

“I made it very clear in my letter of 24 April 2014 (at paragraph 8), that the LSS is aware of and is not challenging the concept of testamentary freedom under English law, and that there is no need to explain that people are free to leave their money as they like, subject of course to the Inheritance (Provision for Family and Dependants) Act 1975. Despite this, you talked once again about testamentary freedom in your letter of 8 May 2014, as indeed you also did in your previous letter of 31 March 2014.

“I say once again: the LSS, and I, are aware of and are not challenging the concept of testamentary freedom under English law, and so there is no need to explain that people are free to leave their money as they like, subject of course to the Inheritance (Provision for Family and Dependants) Act 1975. Please take this on board when responding to this formal complaint.”

Mr. Fluck responded:

“Thank you for also going to such lengths to explain to me your understanding of the concept of testamentary freedom.”

Charming. Perhaps if Mr. Fluck had not constantly diverted the discussion away from the Law Society’s role in promoting sharia towards a general legal discussion of testamentary freedom I would not have had to repeatedly explain that I understood the concept.

Mr. Fluck avoided addressing satisfactorily one of the key concerns that I and many secularists have. Even though testators can lawfully be as religiously bigoted and sexist as they wish, it most certainly doesn’t follow that the Law Society should issue formal guidance on how to achieve that discrimination. At point 5 of my complaint letter I sought to make an analogy by asking:

“Would the Law Society issue similar guidance on how to write wills for people wanting to follow rules which called for the distribution of a testator’s assets on a basis which discriminated on the grounds of race, or on a homophobic basis, or against people with a disability?”

Mr. Fluck responded:

“The Law Society would not issue a practice note to its members dealing with the preparation of wills which amounted to unlawful and/or invalid responses to instructions from a client.”

Confused? I am. Not only does Mr. Fluck not answer this vital question, but if anything he indicates that he doesn’t understand testamentary freedom because there would be nothing “unlawful” or “invalid” in a solicitor drawing up a will that was racist/homophobic/discriminatory towards the disabled if that is in fact what the client instructed the solicitor to do.

But it is the following response which is perhaps the most troubling, because it demonstrates very neatly the scale of the problem that the sharia practice note poses. It also demonstrates the entire struggle of secularism in one nutshell. At point 6 of my complaint I asked:

“And if the Law Society would not provide guidance in those latter cases [racist/homophobic/anti-disabled wills], what was the difference here?”

Mr. Fluck responded:

“The difference is self evident.”

No, actually the difference is not self-evident to me and I imagine it is not self evident to many of my fellow secularists either. Bigotry is bigotry, misogyny is misogyny, sexism is sexism and discrimination is discrimination – whether its driving force is religious or non-religious. As long as the Law Society cannot grasp this, we face an uphill struggle to get this wretched practice note withdrawn.

Witness here the complete breakdown of logic in Mr. Fluck’s responses in points 1 and 10:

[1] “…our practice notes…are issued as guidance to our members.”

[10] “The Law Society has not issued guidance on “Sharia law”.”

And finally, how about this for avoiding the question. At point 12 of my complaint I asked:

“Would the Law Society issue guidance that explicitly discriminated against Muslims on the basis there was “demand” for it and/or pursuant to its policy of equality and diversity?”

This was another key question. If the Law Society can produce formal guidance that explicitly discriminates against non-Muslims then it is surely reasonable to ask if it would produce guidance discriminating against Muslims.

Mr Fluck’s response:

“Not applicable.”

Equality and Diversity

There are two points to make here, both equally depressing.

Firstly, how on earth did the Law Society’s sharia practice note manage to break through its equality and diversity firewall? How did the Law Society, which as it states on its own website is proudly “committed to principles of equality and diversity”, conclude it was a good idea to give guidance on sharia, a religious code under which women, non-Muslims, atheists, ex-Muslims, homosexuals and not to mention Muslims themselves are routinely subjected to the most appalling treatment that humans have managed to think of? Just how can the Law Society conclude that issuing guidance which clearly discriminates against women and non-Muslims is in any way consistent with its supposed commitment to equality and diversity?

And secondly, as anyone who has tried to challenge sharia will tell you, sharia is often specifically justified by its proponents and its apologists (or “useful idiots”, as the latter are often called) by reference to the principle of equality and diversity, or human rights language more generally. At the very beginning of this campaign, for example, the then-President of the Law Society justified the decision to produce the guidance by saying “we live in a diverse multi-faith, multi-cultural society.”

Sharia is not in any way an expression of equality and diversity, and we must resist any attempt to justify it in such scandalous terms.

One has to admire the Law Society’s attempts to keep everyone happy. I’m sure in its own mind it has convinced itself it is doing precisely that. On 15 May 2014 it issued a press release celebrating Lesbian Gay Bisexual and Trans diversity in the legal profession at the Pride in London Parade. Good on the Law Society, I say. The then-President led the Legal Pride Group and said:

“Equality for all under the law is something the legal sector is passionate about and many of our members as part of their normal working day will challenge unjust decisions and defend those who face discrimination.”

Fine words, but I’m not sure how comfortably the Law Society’s honourable stance on LGBT rights sits with its endorsement of sharia.

As I mentioned in this post at the end of March: just 72 hours after another former President of the Law Society and the current chair of its equality and diversity committee, Lucy Scott-Moncrief, had called attention to the “woeful underuse” of women’s talent in the legal profession on the front page of the print version of the Law Society Gazette in a piece called “Brain drain” fear as diversity stagnates, the Law Society produced its sharia succession rules. Barely one issue of the Law Society Gazette rolls off the printing press without an article raising the alarm at how few women have been made £1m-a-year partners at MegaFirm LLP. And yet the Law Society chooses to endorse a mediaeval religious code under which women are often deprived of the very right to be educated at all, and treated as property.

The Law Society’s approach to “equality and diversity” is a shambolic, embarrassing, incoherent mess.

Sharia training courses

Sadly, issuing formal guidance to its members on sharia was not enough for the Law Society to tick its equality and diversity boxes and show the world just how trendy it was.

On 24 June 2014 the Law Society ran a course called “Developing services for Muslim clients – an introduction to Islamic rules for small firms”. My LSS colleague Sadikur Rahman attended and you can read his blog post about it here. It makes for depressing reading.

But it gets even worse. The Law Society has a host of related courses in the pipeline:

What’s next? Well here are my suggestions:

  • Sharia and gay pride: keep it quiet!
  • Sharia and free speech: what not to say (or draw!)

There is reference to the training provider “MBL Seminars” in the first three links above, but in any case those three courses still appear loudly and proudly on the Law Society’s website with a Law Society logo at the top. And on the fourth link the training provider is clearly stated as “The Law Society”.

And there is one thing in particular to be worried about, and which shows just how little understanding the Law Society has of this topic. In the first link above, to the family course, there is reference to Aina Khan, a long-standing advocate of sharia. In her speaker biography on that page of the Law Society website is the following wording (my emphasis added):

“Aina frequently works with courts, Sharia Councils and other official bodies on legal issues affecting Muslim and Asian communities and is frequently invited to appear on TV, Radio and the press in the UK.”

“Other official bodies”? Excuse me? For the Law Society, intentionally or unintentionally, to help disseminate the idea that a sharia council is in any way an “official body” is nothing short of a disgrace. The Law Society would presumably say in response to this that it is not responsible for writing the speaker biography. Well it is responsible for reading it before publishing it on its website. Perhaps in the meantime the Law Society should rename the course tagline to “problems not solutions”.

The international dimension

There is an elephant in the room here, and we do ourselves and future generations immense harm by ignoring it: Islamism is on the march and so, inevitably, is sharia. The Islamist group ISIS, which is merrily decapitating and crucifying its way through the Middle East (yes, people still get crucified today), has warned women to wear the full veil or face punishment. And recently ISIS gave Iraqi Christians in Mosul the following “choice”:

  • convert to Islam
  • pay a protection tax (known as jizya)
  • be killed

Now with that in mind please read, just one more time, the following sections of the Law Society’s practice note:

“The male heirs in most cases receive double the amount inherited by a female heir of the same class”

“Non-Muslims may not inherit at all”

Can you join the dots here? Can you see the bigger picture? The level of harm may be different but it is precisely the same ideology, and the same religion, at work. To not recognise that is to consciously choose to commit intellectual and factual suicide.

I wonder what the Law Society’s opinion on the ISIS ultimatum in Mosul would be. Perhaps the Law Society would see it as an expression of equality and diversity as there was a “choice”? Or perhaps the Law Society would cobble together a course called Sharia tax solutions: everything you need to know about jizya in a hurry.

Isn’t it comforting to know that if ISIS ever get to England, the Law Society has started the process of making our legal system acceptable for them?

I don’t expect the Law Society to cure all the world’s problems but I do expect the Law Society not to give sharia credibility and respectability. I do expect the Law Society not to endorse and encourage discrimination. I do expect the Law Society to do everything in its power to assert the dominance and superiority of English law in our jurisdiction. That would send a loud message to this country and indeed beyond these shores. Ideally I would like to see the Law Society call attention to the harm sharia manages to do in this country even though sharia does not have the status of law. I would like the Law Society to highlight the problem of sharia councils, for example. But if it won’t do that, and it’s probably safe to assume it won’t, is it really too much to ask of the Law Society that it doesn’t actively promote sharia law? As a secularist I have trained myself over a number of years to have the lowest possible expectations, and yet I am constantly disappointed.

Where do we go now?

The Law Society’s behaviour has been raised in Parliament by the Conservative MP Charles Walker (here, here and here).

Private Eye – a publication I often think of as democracy’s last line of defence – has recently run three pieces critical of the Law Society’s practice note (here, here and here). I am particularly pleased at Private Eye’s decision to pick up this campaign because that publication is like a dog with a bone.

As we have seen, the SRA has withdrawn its endorsement (which wasn’t an endorsement, remember, even though it was).

And as LSS Secretary I even have something to thank the Law Society for: its sharia guidance has been excellent for attracting new members to the LSS. More than any other secularist issue, certain parts of the legal profession are incredibly concerned about sharia. If you’re interested in joining the LSS please visit this page, but please be patient while we deal with a backlog, thank you.

The Law Society is increasingly isolated. It is vital that anyone who is concerned about the Law Society’s practice note makes their voice known. You can contact your MP, you can contact the Law Society (here, here or on Twitter @TheLawSociety), and you can sign the LSS petition calling for withdrawal of the practice note.

And rest assured, the LSS will continue to challenge the Law Society.

Is the Law Society fit to represent solicitors?

Over ten years ago, when I was about to start law school in Chester, my fellow students and I had to demonstrate to the Law Society that we were of sufficiently good character to join the profession, by submitting letters from referees.

Well it seems we have come full circle. It is now the Law Society that must demonstrate to me, to my fellow solicitors and to countless others that it is fit to be the representative body for solicitors in England and Wales. It can only do that by withdrawing its sharia practice note, immediately.

Even though the Law Society’s guidance does not change the legal status of sharia, it changes the perception of the legal status of sharia. For that reason, if nothing else, the decision to issue the practice note represents a monumental misjudgement on the part of the Law Society. The Law Society has undermined the rule of law.

It is not acceptable for the Law Society, or politicians, or commentators, to focus merely on whether the Law Society’s guidance is lawful. The guidance is grossly immoral and not in keeping with this country’s proud record on equalities, and that is reason enough for withdrawal. If the Law Society had issued racist guidance no-one would be throwing their arms up in defeat and pronouncing with a pathetic air of resignation, “well, I suppose there’s nothing illegal about it”. This is the analogy we must make with the sharia practice note.

For every day that passes with the Law Society’s practice note in place I feel like resigning in disgrace from the profession I set my sights on joining when I was fifteen years old.

The Law Society’s decision to issue a practice note on a barbaric, inhumane, mediaeval religious code which has been and continues today to be the source of so much human depravity and misery makes me want to scream, to cry, to vomit. I suppose, in the Law Society’s parlance, its practice note evokes diverse feelings within me.

Views expressed are not necessarily those of the LSS

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Good news: EHRC condemns gender segregation

Gender SegregationThe Lawyers’ Secular Society has welcomed the news that the Equalities and Human Rights Commission (EHRC) views gender segregation of university and campus events as unlawful. The only exception relates to religious worship and practice. You can read the EHRC’s advice here.

In November 2013 Universities UK (UUK), the representative body for universities in this country, published guidance for universities declaring that gender segregation was permitted for “genuinely held religious beliefs”. This was in response to the increasing regularity of gender-segregated events organised by Islamic societies on campus. UUK had adopted the following reasoning:

“On the face of the case study, assuming the side-by-side segregated seating arrangement is adopted, there does not appear to be any discrimination on gender grounds merely by imposing segregated seating. Both men and women are being treated equally, as they are both being segregated in the same way.”

The LSS strongly condemned UUK’s guidance and shortly afterwards the LSS took part in a protest outside UUK’s offices in Tavistock Square, London. You can read LSS Secretary Charlie Klendjian’s speech here. The protest attracted widespread media coverage and UUK were strongly criticised by the Prime Minister David Cameron, the then Education Secretary Michael Gove, and the Shadow Business Secretary Chuka Umunna. UUK promptly withdrew its guidance pending a review.

Cambridge University student Radha Bhatt, instructing Deighton Pierce Glynn Solicitors, also challenged the legality of UUK’s guidance on the basis it is a public authority for the purposes of the Equality Act 2010 and bound by the public sector equality duty. You can read the letter here.

The EHRC’s advice states:

“Gender segregation is not permitted in any academic meetings or at events, lectures or meetings provided for students, or at events attended by members of the public or employees of the university or the students’ union.”

UUK has updated its guidance to take account of the EHRC’s advice. You can read it here.

Commenting, LSS Secretary Charlie Klendjian said:

“We welcome the EHRC’s advice whilst at the same time remarking, as we have done in the past, how depressing it is to be fighting battles that have already been won.

“I am very proud that the LSS was involved in this campaign. If UUK’s original guidance had gone unchallenged that would have set a terrible precedent in our universities and our public spaces generally.

“We’ll see how far Islamic societies try to stretch the definition of religious worship and practice but for the time being, we are generally happy with the EHRC’s advice.”

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Sharia training course, anyone?

By LSS member Sadikur Rahman

Not satisfied with issuing guidance on sharia inheritance and succession rules, the Law Society it seems is now even more enthusiastic about sharia law than we previously thought. Clearly, none of the criticism it has faced has led to a re-think.

It held a talk on 24 June 2014 called “Developing services for Muslim clients – an introduction to Islamic rules for small firms”The Law Society was very keen to ensure its members (or those who attended the talk) knew how to apply sharia law provisions for clients who may request such a service.

The talk focused on three areas: wills and succession; Islamic finance; and marriage, divorce and child custody. It was led by a panel of senior lawyers who seemed to have quite a lot of knowledge of the intricacies of sharia law, although it must be said not a particularly “reformist” one.

From a secular perspective I do not see a huge problem with Islamic finance and the products which are being offered by financial institutions as “sharia compliant”. Indeed the talk focused on what that might mean and highlighted the fact that so-called “scholars” (who the speakers seemed to have a very high opinion of) might have divergent views on what is “sharia compliant”.  As long as these products are available to all, then they are simply another form of bond or financial transaction not very different from any other. The proponents of Islamic finance try to argue that it is a form of ethical finance, so for example there would be no investments in gambling, alcohol or pornography. This really is no different from many other “ethical” products/banking services currently in the system. On the whole the products offered such as Islamic mortgages or car finance add an amount to be repaid in addition to the capital sum, which seems to be roughly the same as if interest were charged although of course it is not called that.

It is far more concerning, however, when sharia moves into the personal realm of family life. The debate about sharia compliant wills has been going on for a while, and despite all the criticism it has faced the Law Society do not seem in the least bit concerned that discriminatory practices are being endorsed. It seems to have been accepted by the panel that the sharia rules in relation to succession are discriminatory, again highlighting that, contrary to what many Muslim reformers might argue, there is a long way to go before sharia law is reformed.  The panel’s point of view was that although it is discriminatory, as we have freedom of testamentary disposition it does not matter that it is discriminatory because people can behave in such a manner anyway in relation to their assets. The right to freedom of testamentary disposition is used as an argument in favour of promoting these services.

What I feel is missed, is that for Muslims or at least those Muslims who feel very strongly about their religion, it is not a choice as to whether to follow sharia or not: they must follow it. If the service is offered, Muslims may feel compelled to use these services as part of their religious obligations. Surely, this is in fact taking away their freedom of testamentary disposition. These rules are sanctioned by the Quran – there is no freedom for Muslims to distribute their assets otherwise. The only part which is in any way similar to an “English” will is the “freely disposable third”. However, that can only be given to charities and not to other members of the family such as a daughter who may have been disinherited by the rules.

By promoting these services for Muslims in England and Wales, they are offering the prospect for Muslims to live according to a different set of rules than other people. From the Law Society’s point of view it’s simply a matter of choice, but for Muslims, it may not be a matter of choice; in fact the option to choose is being taken away from them, especially if one goes to a solicitor who then tells them their will may not be sharia compliant. I accept that people can discriminate in their wills anyway, but why promote it or bring it to people’s attention?

The talk then ventured into even more worrying territory, such as how sharia law views marriage, divorce and child custody. It was made clear that Muslim women can request a divorce from their husband or the sharia council, but it wasn’t made clear that a man need not request anybody’s permission to divorce his wife. In keeping with the tone of the talk that little bit of fundamental discrimination and inequality was ironed over or studiously ignored. The talk focused on the kind of proofs a wife may need to obtain a divorce and also tackled the “straw man argument” that apparently everyone thinks Muslim men can divorce at will, as if that, rather than the fundamental inequality between men and women was a cause for concern. We were told that this was not the case and in fact the couple should wait a month before each pronunciation of divorce.

With mediation being encouraged by the family courts and becoming the way forward to resolve all marital disputes, it is inevitable that sharia councils and the Muslim Arbitration Tribunal will step in to offer these services in a sharia law setting. Firms approached by Muslim clients will be able to offer their services to represent them at these tribunals. This, I fear, will lead to the operation of a parallel system of law – used solely by Muslims, albeit nominally under the aegis of English law.

Finally, we were advised on the rights of divorcing couples in relation to children. It was pointed out very clearly that all things being normal – no abuse, mental illness, etc – the sharia law position is that children will go to the mother until the age of 7, and thereafter return to the father. It was said the family courts ought to take this into consideration. If someone went to a sharia council to mediate on this, that is the advice they would be given. No thought, it seems, is being given to the fundamental principle in English family law that the interests of the child are absolutely paramount.

Most worryingly the panel seemed completely unaware of the very relevant case of EM (Lebanon) (FC) (Appellant) (FC) –v Secretary of State for the Home Department (Respondent) 2008.

The case concerned an appeal by a divorced mother to be allowed to remain in the UK on the basis that if she were forced to return to Lebanon her right to family life under Article 8 of the European Convention on Human Rights would be breached, because of the impact of sharia child custody rules on her and her family. The Lords agreed with her. It is I think worth quoting the relevant paragraphs from Lord Hope in full, as it a clear statement of the incompatibility of certain sharia laws with human rights (emphasis added):

5. There is however one aspect of this case which I have found particularly difficult. The appellant came to this country as a fugitive from Shari’a law. Her son had reached the age of seven when, under the system that regulates the custody of a child of that age under Shari’a law in Lebanon, his physical custody would pass by force of law to his father or another male member of his family. Any attempt by her to retain custody of him there would be bound to fail. This is simply because the law dictates that a mother has no right to the custody of her child after that age. She may or may not be allowed what has been described as visitation. That would give her access to her son during supervised visits to a place where she could see him. But under no circumstances would his custody remain with her. The close relationship that exists between mother and child up to the age of custodial transfer cannot survive under that system of law where, as in this case, the parents of the child are no longer living together when the child reaches that age. There is a real risk in all these cases that the very essence of the family life that mother and child have shared together up to that date will be destroyed or nullified.

6.  This system was described by counsel during the argument as arbitrary and discriminatory. So it is, if it is to be measured by the human rights standards that we are obliged to apply by the Convention. The mutual enjoyment by parent and child of each other’s company is a fundamental element of family life. Under our law non-discrimination is a core principle for the protection of human rights. The fact is however that Shari’a law as it is applied in Lebanon was created by and for men in a male dominated society. The place of the mother in the life of a child under that system is quite different under that law from that which is guaranteed in the Contracting States by article 8 of the Convention read in conjunction with article 14. There is no place in it for equal rights between men and women. It is, as Lord Bingham points out, the product of a religious and cultural tradition that is respected and observed throughout much of the world. But by our standards the system is arbitrary because the law permits of no exceptions to its application, however strong the objections may be on the facts of any given case. It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women. That is why the appellant removed her child from that system of law and sought protection against its effects in this country.

The case law is therefore quite clear. Why then was this talk advising us what the sharia law was in relation to these areas of law? It was not simply giving information – which would be understandable. I would even understand it if the talk was giving guidance on say the law in Gulf states or Egyptian law or Bangladeshi law which all have elements of sharia law in them and which one could quite easily point to, by reference to statutes. Indeed there are many clients, for example British Bangladeshis, who would benefit from guidance and advice about Bangladeshi law. Plenty of firms operate in the Middle East and so need to be aware of the laws in those countries. Even if it is based on sharia law, any such country guidance would be based on clear law and statute – not a nebulous concept of “sharia law”.  The point being that the laws in those countries may not tally with an agreed version of sharia law as there is no such thing, but would nonetheless be a more useful piece of guidance.

So again why is the Law Society doing this? It intends to have more detailed seminars in the future.  I feel it is another example of national identities and cultures being subsumed into a stronger religious identity. It seems to me that the Law Society is developing and promoting sharia law because it has been lobbied by groups wanting to promote sharia law.  It was positively encouraging the listeners to be aware of these rules so they could advise their Muslim clients when preparing wills, prenuptial agreements or divorce settlements whether financial or in relation to children.

I found the tone of the talk to be one of an unquestioning belief that sharia rules are worthy of being considered law. Sharia is not law, it should not become law and it should not be given the credibility of being considered as law. If people want to live according to what they consider sharia law in the UK they can do so, as far as is legally possible in the civil matters stated above and they can get advice from the mosque and the internet. It should not, however, be the job of the Law Society to advise us what “sharia law” is.

Views expressed are not necessarily those of the LSS

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Update: SRA letter confirming withdrawal of sharia endorsement

The Lawyers’ Secular Society has now received written confirmation from the Solicitors Regulation Authority confirming withdrawal of the reference in their recent wills guidance to the Law Society’s practice note on “sharia succession rules”. The letter, dated 15 July 2014, is here (PDF).

On 5 June 2014 the LSS wrote an open letter to the SRA, which is the regulatory body for solicitors in England and Wales, asking it to explain its decision to endorse the Law Society’s sharia practice note of 13 March 2014. The SRA is a public authority for the purposes of the Equality Act 2010 and is bound by the public sector equality duty. The Law Society’s practice contains guidance which is fundamentally discriminatory towards women and non-Muslims.

On 11 July 2014 the SRA’s wills guidance was updated, with the reference to the Law Society’s practice note having been removed.

In its letter the SRA says that references to Law Society practice notes “are regularly attached to our guidance and are not an endorsement of the contents”. The letter goes on to say:

“However, given the concerns that have been raised in relation to the inclusion of the reference to the practice note, the reference has now been removed from the appendix to the SRA guidance note.”

The letter closes by saying:

“In removing the reference to the Law Society practice note, the SRA does not accept it has been in breach of any duty under the Equality Act 2010 and the decision to remove the reference should not be taken as any comment or inference as to the Law Society’s practice note.”

The Law Society’s practice note remains in place and the LSS continues to challenge it.

Commenting, LSS Secretary Charlie Klendjian said:

“It was important for the LSS to receive written confirmation from the regulator for solicitors in England and Wales that it was wrong to incorporate a reference to sharia succession rules in its wills guidance.

“It remains the view of the LSS that the SRA’s original reference to the sharia succession rules did constitute an endorsement. The SRA wording was: “If you are acting for clients for whom sharia succession rules may be relevant you will find the Law Society’s practice note on the subject helpful.” Clearly the views of the LSS and the SRA differ on whether this constitutes an endorsement, but it is now an academic point.

“Regardless of the SRA’s view on whether the reference breached the Equality Act 2010, the letter sends a strong message to public authorities that they should not be endorsing, or being seen to endorse, sharia law. The written confirmation of withdrawal sends a powerful and reassuring message to the legal profession and the public at large.

“The SRA has been careful not to make life uncomfortable for its colleagues at the Law Society, but the reality is that the SRA’s withdrawal of its endorsement increases quite considerably the pressure on the Law Society, and its isolation. The LSS can assure all those who are concerned about this practice note that it will continue to press vigorously for its removal by the Law Society.

“For the time being, though, we welcome the SRA’s withdrawal and we are pleased that good sense has prevailed.”

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Good news: Solicitors Regulation Authority withdraws sharia endorsement

The Lawyers’ Secular Society has welcomed the news that the Solicitors Regulation Authority (SRA) has today (11 July 2014) withdrawn its endorsement of the Law Society’s recent practice note on “sharia succession rules”.

On 6 May 2014 the SRA issued ethics guidance on drafting and preparation of wills. The very final sentence of that guidance stated:

“If you are acting for clients for whom sharia succession rules may be relevant you will find the Law Society’s practice note on the subject helpful.”

The Law Society’s practice note, which remains in place, states:

“The male heirs in most cases receive double the amount inherited by a female heir of the same class”

“Non-Muslims may not inherit at all”

The SRA is the regulatory body for solicitors in England and Wales, whereas the Law Society is the representative body. The SRA’s endorsement of the Law Society’s practice note was particularly troubling given that the SRA is a public authority for the purposes of the Equality Act 2010 and is fully subject to the public sector equality duty.

The LSS was the first organisation to draw attention to the SRA’s endorsement of the Law Society’s practice note and sent an open letter to the SRA asking it to explain its actions here (PDF).

The SRA’s ethics guidance on drafting and preparation of wills has now been updated, with the final sentence that referred to the Law Society’s sharia practice note having been deleted.

The Law Society’s practice note on sharia succession rules unfortunately remains in place, and the LSS continues to challenge it.

Commenting, LSS Secretary Charlie Klendjian said:

“Clearly the SRA has seen the error of its ways and we welcome its decision to withdraw its endorsement of the Law Society’s practice note. This sends an important message to the public, to the legal profession and indeed to the rest of the world.

“Not only was the SRA’s decision to endorse the sharia practice note troubling, but so too was the method in which it did so. There was no accompanying press release and the endorsement came in the very final sentence of lengthy general guidance on the drafting and preparation of wills.

“Our attention now turns once again to the Law Society and we very much hope that the SRA’s decision will lead to a serious rethink of policy at Chancery Lane. It is confusing to the public and the legal profession for two closely-related and key institutions within our legal system to have such different views on a matter of such importance to human rights generally, and female equality more specifically.”

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