While the British government bans Islamist groups, it looks very much as though some kind of ban is going to be imposed in France on being completely veiled – wearing the niqab, chador and burka – in public. A committee of the National Assembly has been considering the current position since last summer, and there is support for a ban of some kind among MPs from President Sarkozy’s UMP party, Jean-François Copé wanting to move quickly to legislation, pre-empting the committee’s findings (Authueil has the text; Jules at Diner’s Room argues that it’s unconstitutional). Ministers are divided, employment minister Xavier Darcos arguing against a ban, which he argues is unenforceable, preferring instead a Parliamentary resolution, which he sees as potentially authorising public officials and others to require unveiling when doing business with them. Interior minister Brice Hortefeux is in favour of a limited ban, for instance in the context of public services. Prime Minister François Fillon is also in favour.
In that context, Nicolas Sarkozy’s most recent intervention can be seen as an attempt to unite his supporters. He’s calling for a Parliamentary resolution first, to be followed up by some form of legislation. The opposition socialists are divided, Laurent Fabius being open to a ban while Martine Aubry is opposed. I really can’t understand Julien Dray’s position, which is apparently to say the burka is unacceptable in France but to oppose a ban, preferring a “pro-dignity law”. The effect of which is not clear.
There’s some division among lawyers, too. Anne Levade from the University of Paris XII told the Parliamentary committee that a general ban would be in breach of fundamental rights, though some specific limitaitons on the full beil could be defensible; Bertrand Mathieu of the Sorbonne agrees. But in the same session, Guy Carcassonne from the University of Paris Ouest argued that the European Court of Human Rights would uphold a ban on all face coverings in public imposed on grounds of public order and security.
Une loi fondée sur l’ordre public n’exposerait pas la France à une condamnation par la CEDH : il ferait beau voir que la Cour de Luxembourg expliquât à la France que le fait de cacher son visage aux autres est un droit inaliénable et sacré !
[Legislation on public order grounds wouldn’t result in France’s being found in breach by the ECtHR: I’d like to see the Court in Luxembourg tell France that concealing your face from others is an inalienable, sacred right!]
Apart from the classic howler of misplacing the European Court of Human Rights in Luxembourg (that’s the European Court of Justice; the ECtHR is actually in France, at Strasbourg), surely this is too confident. While Sahin v Turkey makes it clear that a ban even on wearing a headscarf can be justified in terms of the right to freedom of religion, that was a limited ban in public educational intstitutions. I don’t think it can be safe to assume a general legal ban would be okay. More importantly, I think the problem with his approach is that his law would be based on dishonest grounds. If I were a judge in Strasbourg I doubt I could honestly find a ban justified on public order grounds if that was not the real policy purpose behind it. The real reason for considering a ban is to combat extremism and protect women’s rights. If one is imposed, it should be justified in those terms.
If I were advising the French government, I’d suggest something along the lines Sarkozy has proposed: wait for the committee’s report, pass a resolution (these steps may help France’s defence in Strasbourg) and then consider legislating in some form. I reckon legislation could defensibly outlaw wearing the veil in the public sphere (by public servants on duty, in courts, in education and so on; perhaps releasing public authorities such as benefits offices from any obligation to deal with veiled customers) and give special protection to employers who justify banning the veil.
I wonder what the former justice minister and MEP Rachida Dati thinks of all this. As a matter of interest, she’s just become an avocate. That seems to be a fashionable move among French politicians for some reason.