The Church of England and the Judiciary

Judges walk from Westminster Abbey to the Houses of ParliamentThe Lawyers’ Secular Society has welcomed a challenge by two individuals to abolish the religious element of ceremonies to mark the start of the legal year.

Peter Fisher, a retired Ministry of Justice civil servant, and John Butcher, a former Tory parliamentary candidate and current Surrey councillor, have called on the Justice Secretary Chris Grayling to separate the Church of England from judicial affairs. You can read more here and here.

Commenting on the challenge Charlie Klendjian, secretary of the LSS, said:

“The LSS supports this initiative. The clear view of the LSS is that all state institutions and ceremonies – especially those concerning our legal system – must not have a religious flavour.

“Some might say these ceremonies are harmless and even fun traditions. There is however nothing funny about religious influences in a legal system, and we only need look to the present Middle East and to our own history for evidence of this. At best religious power and a fair legal system make quarrelsome bedfellows; at worst they are fundamentally incompatible.

“Even if the argument is that this ceremony is merely symbolic, symbolism itself is very important.

“Some will assume that initiatives such as this are driven by a fear of causing offence to other faith groups. Secularists are accustomed to all sorts of accusations – words such as militant, aggressive and intolerant are not uncommon – but an obsession with avoiding causing offence to religious groups is one of the less common accusations.

“As well as encouraging people, especially lawyers, to think carefully about this particular initiative and why it is sensible, the LSS would also encourage everyone to think of the bigger picture; to try and join a few dots as it were.

“We might ask ourselves why it’s generally rather difficult to hold any religious institution or ideology to account when the state itself – and its vital institutions such as its legal system – are so entwined with religion. We might ask whether a legal system which was fully separated from our state religion would have been willing to accommodate a full face veil in a criminal trial as happened recently, something which many lawyers and secularists have expressed reservations about. We might ask whether severing the relationship between the state and the church – even where this is perceived as merely symbolic (or perhaps, especially where this is perceived as symbolic) – would free up some desperately needed space in which all religious institutions and ideologies could be held more fully to account. We might ask if severing that relationship could help regulate the disproportionate and often automatic influence that faith leaders, of all faiths, exert on politicians and public policy generally.

“These are all very interesting questions. These are questions that any democracy in the 21st century ought to be able to ask of itself in a sober fashion.”

Peter Fisher and John Butcher have set out an explanation and background of some of the issues, which the LSS is happy to reproduce below.

Update to original post, 5 November 2013

Peter Fisher and John Butcher will be using this page as a way of recording correspondence and press releases for their personal campaign, so you will be able to follow their campaign by checking this page regularly.

Item 9 is a key document; it is a list of all the judges who accepted an invite to the judges’ services in 2013, 2012 and 2011 (though acceptance of an invite doesn’t necessarily mean they actually attended).

Update to original post, 23 September 2014

The LSS has now adopted this personal campaign of LSS members Peter Fisher and John Butcher as an official LSS campaign. See item 22 for further details.

1. Letter to Lord Chancellor, 23 September 2013

2. Letter from Crown Office, 1 October 2013

3. Letter to Crown Office, 5 November 2013

4. Letter to Lord Chief Justice, 5 November 2013

5. Letter to Judicial Appointments Commission, 5 November 2013

6. Letter to Archbishop of Westminster, 5 November 2013

7. Press Release, 6 November 2013

8. Letter from Crown Office, 4 December 2013

9. *** JUDGES SERVICE OCT 2013-12-11 – LISTS OF ACCEPTANCE – 4 DECEMBER 2013 ***

10. Letter from Lord Chief Justice’s Secretary, 16 January 2014

11. Letter to Lord Chief Justice, 18 February 2014

12. Letter to Crown Office 18 February 2014 final

13. Summary / state of play as at 19 February 2014

14. Letter to Justice Select Committee, 24 February 2014

15. Letter from Crown Office, 11 March 2014

16. Letter to Crown Office, 15 May 2014

17. Letter to Shadow Lord Chancellor, 7 June 2014

18. Letter to Ministry of Justice Freedom of Information Unit, 9 July 2014

19. Letter to Crown Office, 10 July 2014

20. Letter to 53 senior judges, 10 July 2014 (specimen) Note: individual letters were sent to all Justices of the Supreme Court, the Master of the Rolls, the Chancellor of the High Court, the Presidents of the Queen’s Bench and the Family Divisions and all (other) Lord and Lady Justices of Appeal.

21. LSS comment, “The Church of England and the Judiciary: an update”, 29 April 2014

22. LSS comment, “Abolishment of Judges’ Service: LSS takes on the campaign”, 23 September 2014

23. Letter to Lord Dyson MR, 24 September 2014

24. Letter to Shadow Lord Chancellor, 24 September 2014

25. Letter to the Dean of Westminster, 24 September 2014

26. Letter to Crown Office (Freedom of Information), 24 September 2014

27. Letter to Crown Office, 24 September 2014

28. Letters to Justices of the Supreme Court, 24 September 2014 Note: this is the letter to the President of the Supreme Court; a letter in similar terms was also sent to the other 11 Justices.

29. LSS comment, “Controversial Judges’ Service to go ahead”, 29 September 2014

30. Judges Service October 2014 – list of acceptances

31. Judicial Appointments Commission – commentary on appointments and religion, February 2015


(Image credit above: The Guardian)

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JUDGES’ SERVICES AT WESTMINSTER ABBEY

It is of fundamental importance to justice that judges must be, and be seen to be, impartial. The Judicial Office publishes a booklet entitled Guide to Judicial Conduct, last updated in March 2013, which sets out guidance, including on impartiality and propriety. Bias arising from political activity and ties with political parties, personal or financial interests in cases, participation in public debate, commercial activities, and involvement in community organisations are all dealt with in some detail. But, conspicuous by its absence is the question of judges’ public involvement in religion and giving the appearance of religious prejudice.

On or about 1 October each year since medieval times, the Lord Chancellor has invited judges to a religious service in Westminster Abbey, followed by the ‘Lord Chancellor’s Breakfast’ in the Palace of Westminster. The Lord Chief Justice, most Lord Justices of Appeal and High Court Judges, some Circuit Judges and other members of the judiciary attend the service in their official capacity, in public, during working hours, and wearing their judicial robes.

The religious service follows the rites of the Church of England, so the judges attending give the appearance of support for Christianity in general and that denomination in particular. There is no equivalent provision for Roman Catholics, members of other Christian denominations, members of other religions, agnostics or atheists. Clearly, the religious service and the Breakfast are linked together, as manifested by the traditional public procession of the judges between the Abbey and the Palace. Similar services are held in several cities and large towns outside London for the local judiciary, including magistrates.

Courts often hear cases where issues arise that involve religious bodies or beliefs and which affect criminal defendants, civil parties or witnesses. There may be actual or perceived points of difference between one religion or denomination and another, or between religious believers and non-believers. Witnesses may be members of any religion or none, a fact which each is obliged to demonstrate to the court by the operation of the Oaths Act 1978; and judges may need to rule on issues thus arising. When any issue touching on religion arises, or a criminal defendant, a party or a witness is not a Church of England communicant or a Christian (or especially is agnostic or an atheist), they are apprehensive that the judge may, on that account, treat them less favourably or discount their credibility. They may fear that expressing any complaint about this might make matters worse. Their apprehension is real and these fears seriously undermine public confidence in justice. It is all the more worrying that the Guide to Judicial Conductoffers no reassurance on this issue. It must be updated to overcome this lacuna.

If the judge trying such a case has attended a judges’ service, he or she may then appear to have prejudged the religious issue by publicly appearing to support particular beliefs, which may be at odds with the religious belief, or lack of it, of the criminal defendant, civil party or witness. No matter how much that judge strives to disregard such factors, there will be an appearance of bias. In order to avoid that appearance, that judge ought to recuse himself or herself, but in practice judges rarely, if ever, do so.

For judges to appear to take a partial view of any religious issues is no longer defensible on objective grounds and creates a major impediment to public confidence in justice. Under the Human Rights Act 1998, persons who come before the courts are entitled to the benefit of Article 6 (right to a fair trial) and Article 9 (freedom of religion – including having no religion) of the European Convention on Human Rights. So, any decision on a question of a religious nature made by a court in the UK is potentially open to challenge in the European Court of Human Rights (“ECtHR”).

Obviously, no problem would arise if judges attend the Lord Chancellor’s Breakfast each year in the traditional way, but without there being any religious element. Nor would it be improper for judges to attend in a private capacity, without being robed and in their own time, a religious service of any nature that is informal, and is not paid for from public funds.

John Butcher and Peter Fisher, as private individuals, have written to the Lord Chancellor and Secretary of State for Justice, Chris Grayling MP, drawing attention to these problems and inviting him to take action to end them. The letter has been copied to the current Lord Chief Justice and his designated successor, and circulated to selected media organisations.

Alternative possibilities were mentioned (but not threatened). Each time any judge who has attended a formal judges’ service begins to hear any case where a participant has cause to be concerned about that judge’s apparent religious bias, a recusal application could be made and, if declined, an appeal point would be created. The law could take its course, if necessary by appeal to the Supreme Court and the ECtHR. Another possible option would be for there to be an application for judicial review of the practice of judges attending that service in their official capacity, so if that application were granted, the matter could be judicially decided. Then the practice, if it is declared improper, would have to stop.

The letter asked for there to be published a list of all the current judges who have, as judges, attended any of these services in the last five years (and who attend this year), so that where any religious issue is likely to arise in a case, members of the public (and their lawyers) can know whether the judge hearing it is affected by these problems,. This process might also assist court listing offices, to avoid listing a case involving a religious issue before any such judge. But some religious issues can arise during a case, without any prior inkling. And, for appeals, it may be that all relevant judges have attended such services, which makes for particular difficulties.

The response from the MOJ, is awaited. The government will very likely want to avoid the risk of complex and potentially expensive appeals to the ECtHR, but is unlikely to want to push for a change, lest that be politically unpopular with religious people and traditionalists. Ministers would perhaps prefer that judges decide the matter. Hopefully, legal logic will prevail and judges will accept that this is a change that has to occur, thus avoiding the government being obliged to intervene.

If these services are to end, one important issue that will arise is whether any judicial decision that seems to show partiality towards a particular religious view can be appealed because the judge had attended such a service.

There is likely to be significant opposition to any change; coming from those who favour religious privilege, from traditionalists, from others who are keen to thwart any move of a secular nature, and from certain MPs who are not overly interested in the rights or wrongs of the matter, but who calculate that they stand to win more votes by opposing this change than by supporting it.

It would be unrealistic to expect judges to provide much public support for ending these services. They will regard it as important to do nothing that undermines public confidence in the judiciary, which would arise if they concede that their past attendances at these services was inappropriate. The test of the judges’ view will be the level of support that they offer for the services continuing. If they advance sound legal arguments to justify the services continuing, we shall, no doubt, hear them. If not, they are likely to be quite quiet. Even the ones who would support the ending of the services might be reluctant to speak out, for fear of being seen to ‘break ranks’ with their brethren. It is possible that some retired judges may agree in public that the services should end, but just as many are likely to assert that attending these services never influenced any decision they made that touches on religion.

It would also be unrealistic to expect any significant volume of public support from the legal profession. Those wanting to advance their careers will be reluctant to say anything in public that seems to criticise the judiciary. Likewise, they will be keen to protect the interests of their clients who appear before such judges. That is why, if the services continue there are likely to be few appeals on the grounds of the apparent bias of a judge who has attended such a service – even if lists of such judges are published. But there only has to be one successful appeal on these grounds to bring about the end of these services for good.

But the best hope of all is that the new Lord Chief Justice, after taking soundings, will realise that the correct legal approach is for these services to cease. In the meanwhile, we shall be taking the cause on from where we have started.

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