Sharia practice note – second LSS open letter to the Law Society

Law Soc protest flyer

The LSS has today (24 April 2014) sent a second open letter to the president of the Law Society following the Law Society’s recent decision to issue its practice note on “Sharia succession rules”.

The LSS had previously written an open letter to the Law Society on 31 March 2014 (here).

The Law Society kindly responded to that letter on the same date (here).

The LSS letter dated 24 April 2014 in response to the Law Society is here (PDF), and the wording is below:

Mr Nicholas Fluck
President, the Law Society
The Law Society’s Hall
113 Chancery Lane

Dear Mr Fluck,

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

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

Thank you for your very prompt reply dated 31 March 2014 to our letter of the same date.

We have put your letter of 31 March 2014 in the public domain on our website, but with your personal details redacted, here.

We respond to your letter as follows:

1. We note what you say about the applicability here of the Public Sector Equality Duty (PSED).

2. What is not clear, however, is whether you are merely saying that the PSED does not directly apply to the Law Society acting as a representative body, or whether you are making a wider point to the effect that, in that capacity, the Law Society does not in any event consider it necessary or appropriate for it to have due regard to the need to avoid discrimination and promote equality of opportunity. Please clarify.

3. If you are indeed saying that the Law Society as a representative body does not (regardless of the PSED) have due regard to the need to avoid discrimination and promote equality of opportunity and did not do so here, then please be clear about that (so that I and other members of the Law Society at least know where the Law Society stands on issues of discrimination and equality of opportunity).

4. If, on the other hand, you do accept (which I personally assume and hope as a member of the Law Society to be the position) that the Law Society must have due regard to those things independently of the PSED, then please clarify how it did so in reaching its decision to issue this guidance.

5. As part of that, please clarify how issuing guidance on how to write wills which give effect to a set of rules which promote a) direct discrimination on grounds of gender, promote equality of opportunity for women, and b) direct discrimination on grounds of religion, promote equality of opportunity for non-Muslims.

6. 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?

7. And if the Law Society would not provide guidance in those latter cases, what was the difference here?

8. The LSS is aware of, and is not challenging, the concept of testamentary freedom under English law. Therefore, and with respect, 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. But it is clearly a major step to go from that to saying that the Law Society should offer guidance to solicitors on how to draft wills which give effect to a set of rules which avowedly discriminate on the grounds of gender and religion, as it would be for guidance on writing racist wills, or homophobic wills. Nor is that in any way affected by the fact that the rules in question are religious rules – what matters is their effect, not their provenance.

9. At the end of the Law Society’s practice note, at section 5.4, the reader is referred to a textbook called “Inheritance – Regulations & Exhortations”, by Muhammed Al Jibaly. Mr Al Jibaly is on record as saying:

“Under the rule of Islam, a willful fornicator deserves to be whipped one hundred lashes, and a willful adulterer deserves stoning to death.”

He is also on record as saying:

“What is sad to see, is that for many parents they send their children to the kuffar school, they allow them to mix with the kuffar, play with them […] so that the lifestyle and the beliefs of the kuffar become deep-rooted in the hearts of the kids. […] Command your children to pray when they are seven years old and hit them if they do not pray, or they don’t pray right. […] A girl she should start hijab [wearing of headscarf] from the age of seven. By the age of ten it becomes an obligation on us to force her to wear hijab. And if she doesn’t wear hijab we hit her. [Parents should encourage] their children from mixing with the Muslims, staying away from the kuffar, having only Muslims as his friends, feeling the uniqueness and the pride of being Muslim […]”

The emphases are our own. “Kuffar” is a derogatory term for those who reject Islam.

Please explain in the clearest possible terms why the Law Society is promoting, or at the very least being seen to promote, a book written by an individual with such abhorrent views.

10. We appreciate the Law Society cannot necessarily know of all the other work and opinions of an author it promotes, or is seen to promote, but given Sharia law’s poor human rights record we would assume the Law Society undertook at the very least a reasonable amount of due diligence before promoting this book. Please confirm what, if any, due diligence the Law Society undertook.

11. You state at paragraph 3 of section 1 of your letter that “the practice note was prepared by Sharia law experts…” Please confirm if Muhammed Al Jibaly was one of these “experts”.

12. Please provide a list of all the “Sharia law experts” you refer to.

We look forward to receiving a substantive response to our questions at the earliest possible opportunity. We are happy to correspond on this matter purely by email, and we thank you for emailing (and posting) your previous letter.

Finally, and as we mentioned in our previous letter, there is a protest outside the Law Society’s offices at 113 Chancery Lane this Monday 28 April 2014 at 5pm, calling for withdrawal of the Law Society’s practice note on Sharia succession rules. Further details are on our website here.

Yours sincerely

Charlie Klendjian
Solicitor (SRA ID 344649)
Secretary, Lawyers’ Secular Society

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Launch of “Sharia Watch UK” – House of Lords

LSS Secretary Charlie Klendjian will be speaking at the launch of Sharia Watch UK on Thursday 24th April 2014 at the House of Lords.

Sharia Watch UK is a new internet resource to provide information, news and political discussion on the issues surrounding Islamic sharia law in the UK.

Sharia Watch UK will examine the impact of Islamic sharia law, especially relating to the rights and freedoms of women, freedom of speech, and the democratic principle of one law for all.

The event is kindly hosted by Baroness Cox, and the LSS is very grateful for the opportunity to be involved. The launch event is by invitation only and not open to the general public, but Charlie Klendjian’s speech will appear on this page shortly after the launch.

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This is not a Christian country

By LSS member Harry Small

It is a common error, put about most recently by no less a person than the Prime Minister, that “this is a Christian country”. Legally this is not so.

For historical reasons the liturgy and governance of the Church of England are subject to Parliamentary control and there are some religious qualifications for the role of head of state. That does not mean that the doctrines of Christianity play any part whatsoever in the law of this country as it affects the day to day life of its citizens. The courts have made this clear in a series of judgments over many years.

Let’s start in 1917. Mr Bowman left some money in his will to the Secular Society, as it was then called. Among that society’s objectives were to “promote…the principle that human conduct should be based upon natural knowledge, and not upon super-natural belief, and that human welfare in this world is the proper end of all thought and action”.

Bowman’s relatives sought to invalidate the legacy on the grounds that Christianity was part of the law of the land and that the courts should therefore not help people undermine it. Overruling nineteenth century cases to the contrary, the House of Lords [1] clearly laid down that rational argument against Christianity was not blasphemy; and, more fundamentally, that “the phrase ‘Christianity is part of the law of England’ is really not law; it is rhetoric”. The Secular Society got its money and I am sure used it well.

In 2008 Parliament abolished the crime of blasphemy in England and Wales [2].

In recent times the tension between LGBT rights and some religious opponents has made the courts consider this issue afresh.

In 2010 Mr and Mrs Johns were being considered as potential foster parents and when asked their potential reaction to having a gay foster child, gave some fairly clearly anti-gay reactions: the male of the couple said that when confronted with a child confused about its sexuality he would “gently work to turn them round”. In other words he would try to “cure” them. It is professionally recognised that attempts to cure same sex orientation do not work and can cause serious psychological harm to the victim. Not surprisingly the city council vetting the couple as to their suitability as foster parents did not immediately put them on the list of suitable people.

The Johns tried to get the decision judicially reviewed on the grounds, inter alia, that it was unlawful to treat people as unsuitable to be foster carers on the grounds that they adhered to a “traditional code of sexual ethics” (i.e. no sex outside heterosexual marriage). The High Court did not agree and expressed itself strongly in disagreeing. Here is the most pertinent extract from the High Court in the Johns case [3]:

“Although historically this country is part of the Christian west, and although it has an established church which is Christian, there have been enormous changes in the social and religious life of our country over the last century. Our society is now pluralistic and largely secular. But one aspect of its pluralism is that we also now live in a multi-cultural community of many faiths. One of the paradoxes of our lives is that we live in a society which has at one and the same time become both increasingly secular but also increasingly diverse in religious affiliation.

“We sit as secular judges serving a multi-cultural community of many faiths. We are sworn (we quote the judicial 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.’ But the laws and usages of the realm do not include Christianity, in whatever form.

Mr McFarlane, who belonged to a non-comformist sect, refused to provide sexual counselling to gay couples, in breach of his employer Relate’s equal opportunities policy, and was accordingly dismissed. He claimed that his dismissal was unlawful on the grounds of discrimination against Christians: in other words, that his freedom of religion was violated by his wish to discriminate against LGBT people in the workplace, because this was not accommodated by his employer.

Lord Carey, a former Archbishop of Canterbury, provided a witness statement read to the Court of Appeal on McFarlane’s appeal, in support of an application to the appeal to be heard by a panel of judges with “a proven sensitivity and understanding of religious issues” (presumably people who could be relied on to rule the right way). Such an idea was of course refused as “deeply inimical to the public interest”.

Laws LJ, writing for the Court, made very clear the Court’s views not just on the proposition that discrimination is validated by Christian morality but on the whole proposition that Christian morality in some way underlies our laws [4]:

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

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

This splendid passage makes me quite proud of the British judiciary – it alone shows that to state that this country is Christian in anything but a historical sense is fundamentally inaccurate.

[1] Bowman v Secular Society [1917] AC 406

[2] Blasphemy was abolished by the Criminal Justice and Immigration Act 2008

[3] Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) (28 February 2011)

[4] McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 (29 April 2010)

The author is a solicitor in practice in London. These are his personal views and not necessarily those of the LSS.

All emphasis is the author’s.

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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.

** Update: with apologies for any inconvenience, this event has unfortunately been cancelled. It will be rescheduled for later this year, probably around October. **

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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]


“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
[4] Brett MR in Munster v Lamb (1883) 11 QBD 588
[5] Kleinwort Benson Ltd v Lincoln City Council [1998] 4 All ER 513
[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
[14] A contemporary critique of R v Brown and the legal status of consensual sado-masochism, Natalie Connor,

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.

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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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