Event: Religion, Free Speech and the Law

LSS Secretary Charlie Klendjian will be taking part in a panel discussion kindly organised by the University of Bristol Atheist, Agnostic and Secular Society on the subject “Religion, Free Speech and the Law”.

The event will take place on Tuesday 29 April 2014 from 7pm to 9pm at the Old Council Chamber – Wills Memorial Building. It’s open to students and the public and no booking is required – just turn up on the evening.

The Facebook event is here.

Details of other panellists will be added to this page in due course.

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In defence of BBC’s “The Big Questions”

J and Mo

By LSS Secretary Charlie Klendjian

At the beginning of this year I was invited to participate as a front row guest on BBC1’s Sunday morning television programme “The Big Questions”. You can watch the episode on YouTube here.

I must be frank. When the email invite appeared in my inbox I hesitated before accepting it. Not only would I have to overcome a discomfort of public speaking (I’m the quiet shy type), but I would also have to swallow a good degree of pride because I’ve always thought the programme is a bit – how can I put this politely – rubbish. I’ve lost track of the number of times I’ve screamed at my telly whilst watching the programme, or thrown the remote control on the sofa and stormed into the kitchen to pour some more aviation-fuel strength black coffee to make my heart beat even faster. When I told friends and family about my forthcoming breakthrough media appearance a number of them asked when I was planning to do a DNA test on the Jeremy Kyle Show (some of my friends and family are hilarious).

It appears there are others who don’t hold the Big Questions in the highest esteem. Last week there was a piece in the New Statesman by Willard Foxton called Is the BBC’s “The Big Questions” the worst thing on television?

To give you a brief flavour of Mr Foxton’s views on this programme:

“It’s dreadful, arguably the worst thing that the BBC airs. It has production values you’d expect from a small business’s Youtube video and is presented by Nicky Campbell, a man who displays all the charisma of an eggy fart on a packed commuter train.”

I can’t lie. There is indeed much to grumble about. The programme reduces complex moral and legal ingredients to a concentrated jus of pithy little soundbites, a point Foxton makes in his piece. It also asks misleading questions of its audience. For example, the tagline for the episode I appeared on was, “Should human rights always outweigh religious rights?”. This overlooks the fact that religious belief and manifestation of religious belief are themselves human rights. And as a secularist I am constantly enraged by the assumption, which is helpfully perpetuated by this programme and by the media and our political class more generally, that any discussion of moral issues, or human rights, must by definition involve religious figures (or “leaders” as they’re often generously called). Of course, religious figures are perfectly entitled to contribute to the pressing moral concerns of our age but they must compete on a flat playing field on the strengths of their actual arguments, just like everyone else, and not on the basis of an assumed, highly elevated, privileged and often very undeserved platform.

But my intention here is not to twist a knife. No, I want to focus instead on one outstanding contribution the Big Questions has made to our public discourse. It is an achievement that must not go unrecognised by secularists or indeed by anyone who places a high value on free speech.

To put it mildly the episode I appeared on created something of a stir. The Big Questions became the first programme to depict Mohammed on British television and in doing so it successfully challenged a de facto blasphemy code in this country which has a sorry evolutionary trail leading directly back to the Salman Rushdie affair.

The depiction wasn’t a close-up, or particularly clear, or particularly long-lasting, but it was just enough to create history. It was a brief brush of feet on the sandy surface of the moon. And I am very proud to be able to say: I was on that programme. It was one small step for my media “career”; one giant leap for secularism.

Shortly after the programme aired my fellow panellist and fellow secularist Maajid Nawaz, co-founder and Chair of the anti-extremism think tank the Quilliam Foundation, tweeted one of the images that the programme showed (the one at the top of this post) and said that he, as a Muslim, was not offended by it. Sadly this was just too much for some people to bear. Not only were some people offended by the depiction but they were also offended that others were not offended. So they did the rational thing and called for death and violence. Now that is offensive (and more importantly, it’s criminal).

Yes, that’s right, very shortly after Nawaz tweeted the picture he received a number of death threats and there was also a campaign calling for his de-selection as the Liberal Democrat Prospective Parliamentary Candidate for Hampstead and Kilburn. The LSS fully supported Nawaz and I am pleased to report he is still very much alive and very much a PPC. I wish him all the best in the May 2015 General Election. A secularist who is willing to take a stand for free speech in the face of overwhelming religious bullying is precisely the kind of public servant I would like to see in the Palace of Westminster. If I was a resident of Hampstead and Kilburn I would put a very thick cross by Nawaz’s name come May 2015, even though I hold no flame for his party.

The programme was filmed a week in advance. I am reliably informed that the BBC went into something of a tailspin during the week before transmission as it grappled with whether to show the image of Mohammed. Thankfully, good sense prevailed and the BBC decided that a fleeting glance of a man with a beard wasn’t beyond the pale for a country that gave the world the Magna Carta and JS Mill, or that helped bring about the very welcome demise of Adolf Hitler and Nazism.

I was at that point looking forward to this de facto blasphemy code being challenged on a more regular basis – by which I mean not necessarily just depictions of Mohammed but a more sane, open and honest discussion of Islam more generally.

Sadly, we switched almost instantly to a reverse gear. A few weeks later Channel 4 News, and then Newsnight, in covering Nawaz’s plight, refused to show the image he had tweeted. In those moments they each helped to reinforce the very taboo that Nawaz was fighting against (which I discussed in more detail here).

And this is the crucial point, and this is why there will always be a big place in my heart for the Big Questions: in the few seconds in January in which it showed an image of Mohammed the Big Questions demonstrated it had more courage, more integrity, more credibility, and a greater commitment to free speech than Newsnight and Channel 4 News combined.

Newsnight is the flagship news programme of our public service broadcaster, and they bottled it. Channel 4 News is the flagship news programme of Channel 4 – a station that specifically prides itself on being “edgy” and “controversial” – and they bottled it too. Everyone involved in those disgraceful decisions can hold their head in shame, and everyone involved in the decision to show Mohammed on the Big Questions can puff their chest out and hold their head very high indeed.

When it comes to secularism the stakes don’t get much higher than restrictions on free speech which are enforced by the implicit or explicit threat of violence. So go ahead. Make your snobby, witty remarks about the Big Questions. Take your cheap shots. But when you’ve finished be gracious enough to give them credit for standing up to the pitchfork crew. They deserve a gold medal.

A couple of weeks ago Newsnight ran a special on Maajid Nawaz and this time – mercifully – they did show the image of Mohammed. So they can now polish their silver medal with pride. And they can thank the Big Questions for organising the race.

Don’t ever forget this: the Big Questions, that embarrassing little boy of television programmes, showed the big boys how to do their job – and how to behave like grown-ups.


Views expressed are not necessarily those of the LSS

Charlie Klendjian will be speaking at the protest against the Law Society’s decision to issue guidance on Sharia law in Chancery Lane, London on Monday 28 April at 5pm. More details here.

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Sharia this and Sharia that

Law Soc protest flyer

By LSS member Sadikur Rahman

It’s been over three weeks now since the Law Society published its guidance on “Sharia succession rules”.

Despite criticism from many quarters, including open letters (here and here) and an online petition (here), the Law Society still seems to think this criticism is “inaccurate and ill informed”. Hopefully the protest taking place outside their London offices at 113 Chancery Lane on Monday 28 April at 5pm might help the Law Society see things differently.

I wonder whether the Law Society has had a chance to look through the list of signatories to this open letter. I would really like to hear the president of the Law Society argue that eminent scientists such as Richard Dawkins and Lawrence Krauss, or women’s rights campaigners such as Gita Sahgal (formerly head of Amnesty International’s Gender Unit), Maryam Namazie, Pragna Patel or Jackie Jones (who is Professor of Feminist Legal Studies, Chair of Wales Assembly of Women and president of the European Women Lawyers Association), are “ill informed”.

The suggestion that we are all “ill informed” is ludicrous when one considers that the list of signatories contains women’s rights campaigners who are well versed in recognising all forms of discrimination against women. Indeed they represent true feminist women’s organisations who still believe that feminism and women’s rights are universal. The credentials of these organisations, who I would respectfully suggest know more about the discrimination faced by women than the president of the Law Society, and the fact that they are calling so strongly for the guidance to be withdrawn, should suggest to the Law Society that it has made a profound mistake in endorsing these Sharia law inheritance provisions.

The main criticism against calls for withdrawal of the guidance has been that the guidance is a non-story, since the law hasn’t changed and that some news headlines were misleading in this respect, and that any negative reaction to the guidance was simply “scare-mongering”. My LSS colleague Charlie Klendjian has firmly rebutted much of that criticism in his piece here.

Our concern that in the future there may develop separate legal provisions for the estates of deceased Muslims is not unfounded. Have a look at what the Muslim Arbitration Tribunal says about inheritance disputes:

“As property ownership has increased, so too has the problem of inheritance. A person will probably have property abroad as well. If there is a will, this takes precedence in both English and Islamic law, but challenges can still be made to a will. All too often there is no will and here the matter can become complicated. MAT is not a will-writing service and there are many who offer such a service today. The purpose of coming to MAT would be to request a decision or pronouncement on the shares of the various parties concerned according to Islamic law. If there is still a failure to comply with the decision of MAT by one party, the other party can still attempt to place the judgment of MAT before the civil court as evidence of what the deceased would have known and intended. Similarly, a party could use it in an Islamic court abroad when that court is trying to resolve such matters.”

The emphasis is mine. The suggestion, the assumption, is that when a Muslim dies without a will there needs to be arbitration based on what the person may have known or wanted as a Muslim, and that this must be given effect through the civil courts. Again, I am not saying that this is unlawful. But is this the direction we want to be heading? Where an assumption is made of a deceased’s legal intentions based purely on what their religion was, or what it is perceived to have been when he or she is no longer around to argue otherwise?

There were also some other angles to the criticism which I feel need to be tackled further. Some commentators (Charlie Klendjian’s opponent on BBC 3 Counties Radio, for example) chose to argue that Sharia law inheritance provisions weren’t discriminatory at all and that in fact the way they operated was far better than English law, on the basis family members had to be provided for under Sharia law. This argument conveniently ignores (or is perhaps actually ignorant of that fact that) English law has clear statutory protections which quite adequately and quite rightly protect dependants who have not been provided for in a will (including adopted and “illegitimate” children). This created something of an undeserved slur against the English legal system: that Sharia law was superior to English law.

Some tried to say that because Islam had given women property and inheritance rights 1,400 years ago, it could not possibly be discriminatory towards women now. Others argued that the provisions were sensible, practical and not discriminatory because it was only right that a woman receives a mere half the share of a man given that the man has the “financial responsibility” of looking after the whole family, including perhaps the sister who only receives half his share, as well as maybe his own wife and children. Another argument is that the woman also gets to keep her ‘mahr’ dowry which she received upon marriage (whether it is a small or large amount) and that she therefore does not have to spend her own wealth on her family.

I think we can safely disregard the claims that Sharia inheritance provisions aren’t discriminatory, since on a very simple reading of the Law Society’s own guidance one can see they clearly and objectively are. And as Hellen Parra Florez, the winner of last year’s LSS student writing competition on Sharia law calmly noted in her winning essay:

“The understanding that sharia law discriminates against women is not exactly rocket science.”

Additionally, whether Islam actually gave women rights that they had not enjoyed before is a matter of historical debate. The obvious answer to this, of course, ought to be that even if Islam did give women better rights in the 7th century than they had previously enjoyed, we are now living in the 21st century. Is it really too much to expect that it should be 21st century standards of equality that apply in the 21st century, and not 7th century standards?

The argument that a woman only gets a half share because a man has other responsibilities seems on the face of it to be a valid practical point, if not exactly an ethical one. But one needs only scratch the surface (something most commentators seem incapable or unwilling to do) to find this is a very feeble point. One must ask: why does the man/son have to have responsibility for the whole family? Why does he have to be financially responsible for the remaining siblings/sisters? Why can’t the woman be responsible for the family? What makes a man eminently more worthy of this role than, say, his sister?

And it is only when posing these questions (the answers to which include excuses such as, “the man is better suited to finances than women”; “men and women have different roles”), that one sees the real discriminatory basis for these inheritance provisions and how they maintain inequality, in perpetuity. It’s a typically circular argument: a man has to be head of the household, and therefore it follows that a woman must receive only a half share; a woman receives only a half share because the man is financially responsible for the whole family. This cycle needs to be broken, and this is easily done by accepting the obvious fact that a man is no better or worse suited to this role than a woman. At that point the need for only a half share for women falls away.

The Law Society does not realise that by issuing this guidance it has not only stepped into a minefield of conflicting theological interpretations but it has then chosen to side with the most regressive interpretation of Islam, a point eloquently made by Matt Rowland Hill in the Independent. Will the Law Society respond to the Muslim woman who said this on signing the petition:

“You have taken conservative readings of ‘Muslim laws” and imported (without discussion, without including those who are affected in the definitions or considering any of the other readings of ‘Sharia’) into law… How do you have the arrogance to decide for women of Muslim communities what this should be?”

Or another who said this:

“Not only is the guidance note discriminatory, it is also using the Shari’a as a code of law, where as in Islam, practices depend as much on Sharia as on riwaj and custom as well as local interpretation. These local advisory practices are essential to the way Muslim law is practiced in many parts of the world. The law society is not seeing this difference in the nature of Muslim practice by providing this singular guidance.”

The Law Society can’t get into a theological debate because it’s not an expert on Sharia law. So, what should it do? Easy: it should withdraw its guidance. Immediately. Before it embarrasses itself any further.

Student Loans

On a slightly different note, we have recently seen that Sharia compliant student loans will also become available. There are, apparently, plenty of Muslim students not going to university because of a lack of this finance facility. I’m sure this claim will be questioned in the future. Generally, I have no problem with this type of product, as long as it’s available to everyone and not just Muslims. Will it be available to non-Muslims? I suspect if it makes financial sense everyone should be able to use it. If not, then perhaps that’s another sign of discrimination. Or at the very least, division.

Views expressed are not necessarily those of the LSS

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R v Brown: twenty four years on, a critical secular perspective

HandcuffsAre 50 Shades of Grey still too colourful for the black letter law and for those who cast a light on its darker meaning? In the first of a two-part series, LSS member Dr. Peter Bowen-Walker probes.


In a recent press conference held by the Lord Chief Justice [1], Frances Gibb of The Times asked the following question:

Do you agree with [judge and President of the Family Division Sir James] Munby’s recent comments that it is no longer the job of judges to impose morality in the courts and that Christianity should no longer hold sway over other faiths?”

The reply given by the Lord Chief Justice, Lord Thomas, was:

“We are a court where we have to apply the law and the law is essentially a secular law and so, yes, I do agree as it is our duty to apply law which is secular law, we should do that. I think in the past where judges have taken views in relation to what is not law, they sometimes get themselves into difficulties.”

Did the Lord Chief Justice have any particular cases in mind? Are there specific criminalised behaviours which he believes might require reconsideration?

Chapter 1: In the beginning

Some twenty four years ago the police in Manchester arrested sixteen men, in an operation known as “Spanner”.

The men were charged with assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861, and unlawful wounding contrary to section 20 of the same Act.

The headnote for that case, R v Brown, when it reached the House of Lords (as the highest court in the land was then called), recorded:

“The appellants belonged to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willingly participated in the commission of acts of violence against each other, including genital torture, for the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. The activities took place in private at a number of different locations, including rooms equipped as torture chambers at the homes of three of the appellants. Video cameras were used to record the activities and the resulting tapes were then copied and distributed amongst members of the group. The tapes were not sold or used other than for the delectation of members of the group.” [2]

The website of a group of people sympathetic to the defendants, set up shortly after the original conviction, recorded:

“In 1990 sixteen gay men were enjoying a bit of consensual SM [sado-masochism] when the British police broke in and arrested them. A court case was held, “Crown vs Spanner”, which resulted in some of the men being imprisoned. The Tops were convicted of GBH (causing Grevious Bodily Harm) and the Bottoms with aiding and abetting GBH (by consenting to it)”. [3]

Barely a single student of the criminal law has forgotten the facts of this piercing case. If there is just one case that retains a firm grip on the collective student memory, it tends to be this one.

Once upon a time…

The original declaratory theory of the common law suggested that judges “stated or found” the law, rather than making it [4], thus promoting the illusion that judges were merely objective servants facilitating the will of Parliament.

A century later a more realistic analysis was formulated by Lord Browne-Wilkinson, who stated:

“…the whole of the common law is judge made and only by judicial change in the law is the common law kept relevant in a changing world.” [5]

The purpose of this two-part series is to critically explore, in the context of R v Brown, whether Lord Browne-Wilkinson was correct to state that the common law was in fact “kept relevant” in a changing world, especially in relation to consent given during non-normative sexual activity.

Chapter 2: Some context (before we get tied up in other details)

We live in an advanced liberal democracy in which unelected judges openly admit to making law.

For many, this is a cause for concern. After all, judges are only human and despite their sworn oath to “do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill will” [6], it is inevitable that just once in a while even our most competent and conscientious judges will get things wrong and succumb to their own personal biases and preferences.

Normally this would not matter too much because there exist abundant “checks and balances” by way of, for example, appeal to higher courts. And ultimately our sovereign Parliament could step in and democratically remedy any deficiencies, or so the theory goes.

Coincidentally, as I type this article, the very first “same-sex” marriages are taking place in the UK [7]. This new direction of travel towards a more humanistic and inclusive society is welcome as far as the author is concerned and contrasts markedly with the oppressive view of homosexual behaviour espoused by the Wolfenden Report in 1957 [8], which revealed that the function of the criminal law in relation to homosexual behaviour at the time was:

“to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are especially vulnerable because they are young, weak in body or mind, inexperienced, or in a state of special, physical, official or economic dependence.”

So, back in 1957 – four years after the elucidation of the structure of the DNA molecule [9] – the UK was still trapped in a pre-Iron Age conception of human sexuality.

In addition, Parliament would not decriminalise homosexuality until 1967 [10], instead preferring to continue relying on “Judeo-Christian” values as providing an acceptable normative societal standard.

That standard, enforced on pain of stigmatisation and criminalisation, can be summed up neatly by the following anti-humanistic verses from the Bible:

“The sexually immoral, men who practice homosexuality, [...], liars, perjurers, and whatever else is contrary to sound doctrine…” [11]

And:

“If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them.” [12]

Chapter 3: Did they all live happily ever after, or did their tortured state end in tears?

The court of first instance found the men guilty, the Court of Appeal upheld their convictions, and the House of Lords summarised the main issue for their consideration as follows:

“My Lords, the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under the 1861 Act. They establish that the courts have accepted that consent is a defence to the infliction of bodily harm in the course of some lawful activities. The question is whether the defence should be extended to the infliction of bodily harm in the course of sadomasochistic encounters.”

And so it fell to the most senior court in the land to “declare” the law. Could a competent adult give valid consent to have, inter alia, his “genitals tortured” in such a way as to cause some harm (bruising, cuts, grazing, minor bleeding, etc.) which is not permanent? And could the giving of consent by the willing participant amount to a defence for the person who administers the “force”?

In the end the decision was made by a narrow margin, with three of their Lordships upholding the original conviction and two dissenting.

Today, therefore, the consensual infliction of harm on another person for sexual gratification is not an act the law will tolerate. That is the law, and that is how our highest court “declared” sections 20 and 47 of the Offences Against the Person Act 1861 were to be interpreted.

So if you have a 50 Shades of Grey evening planned – beware. You might have your collar felt.

Chapter 4: The moral of the story

One blogger has summarised the outcome as follows:

When judges start to use their own morality to decide cases, they start to usurp the rule of law. Whether the decision or the ratio was correct or not, the motive was entirely wrong – the appellants were effectively charged with offences contrary to Lord Templeman’s personal morality, not the law of England and Wales – and that is something which should not be tolerated.” [13]

And according to another commentator, Natalie Connor:

The circumstances of SM have been misunderstood by the courts [...] – SM does not involve ‘assaults occasioning ABH’ at all, and is in fact a legitimate form of sexual expression, deserving of privacy rights, where the law should not purport to interfere.” [14]

In a submission to Parliament requesting a change in the law concerning consent to harm in sexual activity, the organisation set up to object to the law as it currently stands stated:

“The Trust recognises that a line must be drawn and that consent cannot be allowed as a defence to a really serious injury but in the case of [R v Brown] the line was drawn at what the Trust submits is too low a level such that certain sexual activities producing no lasting harm whatsoever are now criminalized. The Trust contends that there is no justification for this either on grounds of public morals or public health.” [15]

Why did this judgment become such a whipping boy and a cause célèbre?

In the second article I will explore how other related cases were decided and whether there is any evidence to support the accusation against their Lordships that their judgment was informed by hetero-normative bias leading to what some have claimed were homophobic comments.

I will also explore whether there is any evidence to identify the pervasive presence of the established Church in this judgment. Did it matter for the purposes of the judgment that Lord Templeman was a member of the Ecclesiastical Committee of Parliament, or that Lord Jauncey was a committed member of his Episcopalian Church? Do the use of words such as “evil” and “cult” point us to reasonably asking whether we are all subject to the vicarious rule of the Church through a biased judiciary?

When Lord Lowry stated in his judgment that “…homosexual sado-masochism…[could] scarcely be regarded as a ‘manly diversion’…”, was he overstepping his unelected remit by letting his personal bias run amok through his judgment (contrary to his oath), or was he honestly and diligently “binding and tying” the common law to pre-Iron Age values because that is just what good judges did in the 1990s?

Finally, I will explore the difficulties encountered when attempting to ascribe the R v Brown judgment to other theories (Moralism or Utilitarianism), and I will employ the conclusions to shed some light on why the judgment has caused so much controversy.

A link to Part 2 of this article will appear here in due course.


[1] Press Conference held by LCJ (Lord Thomas) on 5 November 2013
[2] R v Brown [1993] 2 All ER 75
[3] http://www.chiark.greenend.org.uk/bdsm/first-uk-site/spanner.html
[4] Brett MR in Munster v Lamb (1883) 11 QBD 588
[5] Kleinwort Benson Ltd v Lincoln City Council [1998] 4 All ER 513
[6] http://www.judiciary.gov.uk/about-the-judiciary/introduction-to-justice-system/oaths
[7] The Marriage (Same Sex Couples) Act 2013
[8] The Report of the Committee on Homosexual Offences and Prostitution (the Wolfenden Report) (Cmnd 247 (1957)) ch 2 para 13)
[9] And reputedly announced in the Eagle pub in Cambridge – let’s hope the moralists don’t succeed in bringing back prohibition!
[10] The Sexual Offences Act 1967
[11] 1 Timothy 1:10 Bible, English Standard Version
[12] Leviticus 20:13
[13] http://lexobiter.blogspot.co.uk/2010/10/thought-on-lord-templemans-judgement-in.html
[14] A contemporary critique of R v Brown and the legal status of consensual sado-masochism, Natalie Connor, http://www.sjol.co.uk/issue-4/a-contemporary-critique-of-r-v-brown-and-the-legal-status-of-consensual-sado-masochism
[15] http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/memos/ucm40702.htm


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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Sharia law “is not exactly girl power”

Law Soc protest flyerFrom the Law Society Gazette, 31 March 2014: LSS Secretary Charlie Klendjian’s letter in response to the Law Society’s practice note on “Sharia succession rules”:

It is reassuring to see the Law Society’s former president and current chair of its equality and diversity committee, Lucy Scott-Moncrief, call attention to the ‘woeful underuse’ of women’s talent in the legal profession (‘Brain drain’ fear as diversity stagnates, Gazette 10 March 2014).

Similarly, it is worrying to see the Society do its bit to further sexism and misogyny. It has recently published guidance on how to make wills follow “sharia succession rules”. This particular section of the guidance note should give any equality and diversity campaigner worth their salt some food for thought:

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, and only Muslim marriages are recognised.”

It is not exactly girl power and interfaith cohesion, is it?

I fail to understand why the Law Society should go out of its way to give its blessing to this.

Charlie Klendjian
Secretary, Lawyers’ Secular Society, London

(PDF here)

You can follow our campaign calling on the Law Society to withdraw its practice note, and keep up to date with key events and media coverage, here.

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Sharia practice note: open LSS letter to the Law Society

Law Soc protest flyerThe LSS has today (31 March 2014) sent an open letter to the president of the Law Society following the Society’s recent decision to issue its practice note on “Sharia succession rules”.

This is the letter:

The President
The Law Society
The Law Society’s Hall
113 Chancery Lane
London WC2A 1PL

Dear Sir,

Law Society’s practice note on “Sharia succession rules”

This is an open letter which we have published on our website this morning.

We refer to the above practice note dated 13 March 2014.
(www.lawsociety.org.uk/advice/practice-notes/sharia-succession-rules/)

Please can you explain why and how the Law Society has adopted guidance to assist in drafting wills which treat women far worse than men, and non-Muslims far worse than Muslims? How is this consistent with the Law Society’s claimed commitments to equality?

For your information, you may be interested to know:

  1. We have launched an online petition calling for withdrawal of this practice note (approaching 2,000 signatures at the time of writing)
  2. There is also an open letter calling for withdrawal of this practice note, signed by public figures and human rights campaigners from around the world
  3. There will be a protest against the Law Society’s decision to issue this practice note on Monday 28 April 2014, in London

Further details are here:

lawyerssecularsociety.wordpress.com/2014/03/28/protest-against-law-societys-sharia-wills-practice-note-mon-28-april-london/

An emailed response (in addition to or in place of a postal one) would be appreciated.

Given the serious nature of the LSS’s concerns we expect to receive a substantive response to our questions at the earliest possible opportunity.

Yours faithfully

Charlie Klendjian
Solicitor
Secretary, Lawyers’ Secular Society

PDF here.

Commenting, LSS Secretary Charlie Klendjian said:

“This is a short sharp letter which we hope will focus the attention of the president, the legal profession and the wider public to the very serious issue at hand.

“The LSS would also strongly urge lawyers, campaigners and members of the public who have concerns about the decision to issue this guidance to make their feelings known to the Law Society, be it privately or within the public domain.”

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Protest against Law Society’s Sharia wills practice note: Mon 28 April, London

Law Soc protest flyerThe LSS is delighted to support a protest that has been set up to challenge the Law Society’s recent practice note on “Sharia compliant” wills.

The LSS has strongly condemned the Law Society for issuing this guidance and has called for its immediate withdrawal. You can sign the LSS’s petition here.

The LSS is grateful to Gita Saghal (Centre for Secular Space), Maryam Namazie (One Law For All) and Pragna Patel (Southall Black Sisters) for organising a symbolic protest action on Monday 28 April at 5pm outside the Law Society’s offices at 113 Chancery Lane, London WC2A 1PL, and for gathering a list of signatories for an open letter, including human rights and women’s rights campaigners.

Commenting, LSS Secretary Charlie Klendjian said:

“To put it mildly, the Law Society has miscalculated the strength of opposition to its recent practice note.

“The LSS is proud to support this protest and we are honoured to join ranks with fellow campaigners.

We urge people of all faiths and none to come along to lend their support, and at the same time to exercise their precious democratic rights of free assembly and protest.”

The Facebook event is here.

This is the open letter:

We, the undersigned, are appalled to learn that the Law Society, the representative body for solicitors in England and Wales, has issued Sharia-related guidance on wills, succession and inheritance.

The guidance says:

“Certain principles of Sharia are different to English succession laws. For example, it is not possible to inherit under Sharia rules via a deceased relative. No distinction is made between children of different marriages, but illegitimate and adopted children are not Sharia heirs.

“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, and only Muslim marriages are recognised. Similarly, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of death”.

Whilst not binding, the guidance legitimises rules which are highly contested by many Muslims themselves and which discriminates against Muslim women, non-Muslims, and ‘illegitimate’ and adopted children. The guidance seriously undermines the Equality Act, citizenship rights and one law for all.

Since individuals are already free to dispense of their estate as they see fit (as long as they provide for their dependants) such guidance unwittingly aids and abets Islamist attempts at subverting democratic laws and principles with a de facto parallel legal system where minority women and children have increasingly fewer rights than other citizens.

This scandalous guidance is similar to that which Universities UK published endorsing gender segregation at universities in Britain. UUK was promptly forced to withdraw its guidance after widespread condemnation.

We call on the Law Society to immediately and unequivocally withdraw its guidance.

Ahlam Akram, Founder and Director of Basira for Universal Women Rights
Ahmed Idris, Member of Lawyers’ Secular Society
Ali al-Razi, Ex-Muslims Forum Administrator
Aliaa Magda Elmahdy, Egyptian Activist
Amina Sboui, Tunisian Activist
Charlie Klendjian, Secretary of Lawyers’ Secular Society
Chris Moos, Secretary of LSESU Atheist, Secularist and Humanist Society
Christopher Roche, Chair of Bath Atheists, Humanists and Secularists
Elham Manea, Author
Fariborz Pooya, Founder of Iranian Secular Society
Farzana Hassan, Former Director of Muslim Canadian Congress and Writer
Fatou Sow, Senegalese Sociologist
Gita Sahgal, Director of Centre for Secular Space
Harold Kroto, Nobel Prize Winner
Imad Iddine Habib, Founder and Spokesperson of Council of Ex-Muslims of Morocco
Jackie Jones, Professor of Feminist Legal Studies, Chair of Wales Assembly of Women and President of European Women Lawyers Association
James Bloodworth, Editor of Left Foot Forward
Julie Bindel, Writer
Kate Smurthwaite, Comedian and Activist
Khatija Barday-Wood, CEO and Founder of Eiman
Kiran Opal, Writer and Human Rights Activist
Lawrence M. Krauss, Physicist and Author
Lisa-Marie Taylor and Julian Norman, Co-Chairs of Feminism in London
Marieme Helie Lucas, Founder of Secularism is a Woman’s Issue
Maryam Namazie, Spokesperson of One Law for All and Fitnah
Mersedeh Ghaedi, London Spokesperson of Iran Tribunal
Mina Ahadi, Coordinator of the International Committee against Stoning and Execution
Nadia El-Fani, Filmmaker
Nahla Mahmoud, Spokesperson of the Council of Ex-Muslims of Britain
Nazanin Afshin-Jam, President and co Founder of Stop Child Executions
Nina Sankari, President of the European Feminist Initiative in Poland
Omar Kuddus, LGBTI / Human Rights Advocate and Director of GayAsylumUK
Pat Black, Immediate Past President of Soroptimist International GBI
Patty Debonitas, Spokesperson of Iran Solidarity
Peter Tatchell, Director of the Peter Tatchell Foundation
Pragna Patel, Director of Southall Black Sisters
Reza Moradi, Political Activist
Richard Dawkins, Scientist
Robina Iqbal, Board Member of Muslim Women’s Network UK
Safia Lebdi, Conseillère Régionale EELV and présidente des Insoumises
Salil Tripathi, Writer
Sarah Haider, Co-Founder of Ex-Muslims of North America
Shelley Segal, Singer and Songwriter
Soad Baba Aissa, Head of Association pour la mixité, l’égalité et la laicité en Algérie
Sohaila Sharifi, Women’s Rights Activist
Soraya Chemaly, Writer and Activist
Sue Cox, Co-Founder Survivors Voice Europe
Tarek Fatah, Founder of Muslim Canadian Congress
Taslima Nasrin, Writer
Yasmin Rehman, Women’s Rights Campaigner

To support the campaign calling for the Law Society’s withdrawal of its discriminatory guidelines, please sign the Lawyers’ Secular Society’s petition.

There will be a symbolic protest action on Monday 28 April at 5pm. More details to follow.

For more information, contact:

Gita Sahgal, Centre for Secular Space, gita@centreforsecularspace.org, www.centreforsecularspace.org

Maryam Namazie, One Law for All, onelawforall@gmail.com, www.onelawforall.org.uk, 07719166731

Pragna Patel, Southall Black Sisters, pragna@southallblacksisters.co.uk, www.southallblacksisters.org.uk, 07985399740

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Diversity? No, the Law Society’s Sharia guidance has created division

Law Soc protest flyerBy LSS Secretary Charlie Klendjian

A couple of weeks ago, on the front page of the Law Society Gazette, the Society’s former president and current chair of its equality and diversity committee Lucy Scott-Moncrief called attention to the “woeful underuse” of women’s talent in the legal profession (‘Brain drain’ fear as diversity stagnates, Gazette 10 March 2014).

Seventy two hours later, on 13 March, the Law Society issued a practice note on “Sharia succession rules”.

These following provisions of that guidance, at section 3.6, ought to give any equality and diversity campaigner worth their salt some pretty serious food for thought:

“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, and only Muslim marriages are recognised.”

…illegitimate and adopted children are not Sharia heirs.”

It’s not exactly girl power, interfaith cohesion and happy families, is it?

On 18 March my LSS colleague Sadikur Rahman condemned the Law Society for issuing its practice note.

The national media picked up the story and by 23 March the Sunday Telegraph went so far as to lead with the headline “Islamic law is adopted by British legal chiefs”. That same day the LSS issued a statement strongly condemning the Law Society and calling on it to withdraw its guidance, and we launched an online petition. For a round-up of the key media coverage, including my lively radio debates, see here.

There has been much debate since the practice note was published about what, if anything, has changed in legal terms.

The Law Society has said its practice note has not changed the law. The LSS agrees with this. At no point has the LSS said that the law has changed.

So what’s the problem?

Well let’s try and understand what the Law Society is actually giving guidance on. It is giving guidance on Sharia law. Sounds reasonable, surely? Well not really, because this is no ordinary law. As the practice note states at section 1.5 when defining the terminology it uses:

“Sharia – the code of law derived from the Quran and from the teachings and example of Mohammed.[…]

This is an important point in itself: the Law Society is giving guidance on theology, and this is simply not appropriate. The Law Society represents all solicitors in England and Wales, which means it represents solicitors of all faiths and none. It is beyond the Law Society’s remit to give guidance on theology. It is akin to the Guild of French Polishers outlining best practice on teeth whitening.

The Law Society is a secular organisation representing solicitors in a secular legal system. It would not and should not give guidance on the Torah, the book of Revelations, the Bhagavad Gita, or the Guru Granth Sahib, and nor should it give guidance on Islamic theology. For this reason, if nothing else, the decision to issue the practice note is utterly absurd.

By issuing the practice note the Law Society has created an assumption, whether it intended to or not, that Sharia law is a credible and respectable legal discipline just like any other within the English legal system. Furthermore, the detailed technical provisions at the beginning of the practice note concerning domicile potentially create a misleading impression that the focus of the guidance is perhaps foreign jurisdictional issues, but this is not its focus. The focus is the application of Sharia law within the jurisdiction of England and Wales. It’s not for the Law Society to generously give Sharia law – which has the status of theology in this country – the credibility of a legal discipline within our jurisdiction.

It gets much worse. As you can see from the wording I have reproduced at the beginning of this piece, the Law Society’s guidance (on the subject that is beyond its remit) is guidance on how to utilise an ancient religious code which is fundamentally discriminatory as far as English law is concerned. It is fundamentally discriminatory to women, it is fundamentally discriminatory to non-Muslims, it is fundamentally discriminatory to “illegitimate” children (how nice to see that phrase make a long-awaited comeback, incidentally), and it is fundamentally discriminatory to adopted children and children who are considered to be of a different faith.

Subject to noble statutory protections which safeguard the rights of a deceased’s dependants, under English law if a testator wants to incorporate into a will ancient religious rules which specifically deem men more worthy than women, and Muslims more worthy than non-Muslims, then he or she is free to do so. Testators had that freedom before this practice note and they continue to have that freedom now. Nothing has changed. And whilst it would clearly be inappropriate for the testator’s advising solicitor to be so frank, external observers are free to call out this harsh testamentary behaviour for precisely what it is: sexism, misogyny and religious bigotry.

I fail to understand why the Law Society should go out of its way to give its blessing to such discriminatory practices, for that is precisely how the Law Society’s practice note will be perceived inside and outside of our profession – regardless of the assertion by its president Nicholas Fluck that the Society is not promoting Sharia and that any suggestions it is are “inaccurate and ill informed”.

The president also said:

“Our practice note focuses on how to do that [distribute assets in accordance with Sharia], where it is allowed under English law. The law of England and Wales will give effect to wishes clearly expressed in a valid will in so far as those wishes are compliant with the law of England. The issue is no more complicated than that.”

Move on, nothing to see then? No, not yet. The Law Society is legitimising, normalising and sanitising – or at the very least being seen to legitimise, normalise and sanitise – the distribution of an estate in accordance with the fundamentally discriminatory provisions of Sharia law. By extension, the Law Society is legitimising, normalising and sanitising Sharia law more generally, with all the toxic side effects this generates for women, for non-Muslims, for apostates, for homosexuals and indeed for Muslims themselves. This is wholly unacceptable, and I urge members of the Law Society to resist it.

Would the Law Society give its members guidance on other ways to achieve discriminatory objectives in their will? This point is rather eloquently covered by “Rob”, who commented on The Lawyer’s coverage of this story as follows:

“I don’t think (please correct me if I’m wrong) that the LSS have denied the existence of freedom of disposition under English law. That is not the issue here. The issue is whether it is appropriate for a regulatory body in a supposedly secular society that respects diversity to issue guidance on how to comply with a body of rules/beliefs which many argue, and which at least objectively appear to be, fundamentally discriminatory.

“No one would argue that if a Muslim instructed his solicitor to draft a sharia compatible will that the solicitor shouldn’t do so, of course he should. Equally, if a racist EDL member wanted a will under which any grandchildren who weren’t white, or a homophobic client (who belonged to an anti-gay group of some kind) a will under which any grandchildren who grew up to be homosexual, received no inheritance, then of course the solicitor should again draft the will in accordance with the client’s wishes. However, it would be entirely inappropriate for the Law Society to issue guidance on how to draft wills so as to be acceptable to a racist or homophobic group. As such is it appropriate for it to issue guidance on drafting wills in compliance with another set of (arguably discriminatory) beliefs simply because the beliefs stem from a religion? The LSS suggest not and I would suggest that’s not an unreasonable stance to take.”

Ignore Rob’s reference to the Law Society as a “regulatory body” and ignore his assumption that a solicitor would necessarily be competent to advise on Sharia law, because he makes a very worthwhile contribution to our debate: it would be unthinkable for the Law Society to issue guidance on how to facilitate the discrimination Rob describes in his comment. The fact that the discrimination described in the Law Society’s guidance “stems from” religion does not stop it being discrimination. Discrimination is discrimination. It’s really as simple as that.

The Law Society has argued that it is merely responding to “demand” for Sharia wills. Don’t be deceived by this apparently innocuous argument because it is a frightening one. It suggests our cherished and hard-won legal protections against discrimination, which are thankfully an established feature of our magnificent legal system, can be thrown to the wild dogs of supply and demand. Would the Law Society respond to “demand” for guidance on incorporating homophobic and racist provisions in a will? Would it respond to “demand” for provisions specifically enabling non-Muslims to discriminate against Muslims?

The Law Society concedes at section 1.2 of its practice note that:

“There are specific differences between Sunni and Shia rules on succession. These differences are not covered in this practice note…”

Coolly and bureaucratically remarking that there are “differences” between Sunni and Shia Islam earns the Law Society the gold medal for Understatement of the Year 2014. Yes, there are indeed “differences”, as anyone who occasionally thumbs through a newspaper will confirm.

Will the Law Society in time produce different practice notes for different branches of Islam? By the Law Society’s own standard, presumably all that is necessary is the requisite “demand”? Surely if “diversity” – as that term is so creatively interpreted by the Law Society – is such a good thing, then we need as much of it as possible?

By issuing this practice note the Law Society has enshrined into its official guidance documents a damaging assumption: it has created the assumption that Muslims are a monolithic block who are clamouring for Sharia law. It has created the assumption Muslims seek to live under inferior rules to the rest of us. As my LSS colleague Sadikur Rahman notes, this is the “racism of lower expectations”.

Many liberal and secular Muslims, within these shores and beyond, are fighting a daily battle, often quite literally, to escape the clutches of Sharia law, and this guidance sells them out in an instant. Muslims who do want to live in accordance with what they consider Sharia law are free to do so but only insofar as this is compatible with English law, be it in the area of wills and succession or elsewhere. And it’s worth recording that Muslims have far greater freedom to practice their faith as they individually choose to in the United Kingdom than perhaps anywhere else in the world, including – or especially – in Islamic states. This sobering fact ought to be an effective antidote to the constant and shameful accusations of racism or Islamophobia that are instantly generated when one dares to criticise Sharia law.

Having stumbled into the theology debate, by section 5.2 the Law Society folds its cards and realises it must now outsource further guidance to the experts. It calmly informs its by now bemused members that:

“Local Sharia scholars are a useful source of information and may be contactable via the client’s mosque.”

And with this the Law Society gives a ringing endorsement to Islamic scholars, some of whom will be progressive and some of whom will be anything but. When exactly did it become the Law Society’s business to bestow upon theologians some kind of quasi-legal status? Answer: on 13 March 2014.

In constructing the defence of their practice note on the fact that the law has not changed, the Law Society fails to understand the wider social and cultural significance not only of its guidance, but of its own special place within our legal establishment. The Law Society is an important body. Its practice notes are not binding but (section 1.4) “They represent the Law Society’s view of good practice…You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions”.

In responding to its critics the Law Society fails with flying colours to understand that its practice note will be perceived as an endorsement not only of Sharia law wills, but of Sharia law more generally, and this is a misjudgement of monumental proportions. English law has – and crucially it must be seen to have – primacy over Sharia law. In its breathtaking naivety the Society fails to understand just how quickly “guidance” on Sharia wills becomes for some an assumption, or an expectation, or community pressure, to have a Sharia will. In short, the Law Society’s response to its critics has been to display precisely the type of behaviour many ordinary punters might expect from the representative body for solicitors: technical, academic, dismissive, aloof, and missing the bigger picture in quite spectacular fashion.

In the space of just seventy two hours the Law Society highlighted the unequal treatment of women in its profession, and then it gave guidance on how to use English law to use a medieval religious code which is fundamentally contradictory to English law. What a thoroughly modern interpretation of “equality”, and how very “diverse” indeed. Or perhaps the term should be divisive.

The Law Society’s practice note on Sharia succession rules demeans liberal and secular Muslims, it demeans women, it demeans children, it demeans non-Muslims, it demeans the very term “diversity”, it demeans the equality and diversity provisions of the Solicitors Code of Conduct, it demeans solicitors, it demeans the Law Society, and it demeans the English legal system – and so it demeans every single one of us.

As a lowly member of the Law Society I ask its president – I urge him – to draw a line under this fiasco and withdraw this disturbing practice note without a moment’s delay.

Views expressed are not necessarily those of the LSS

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