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Lord Carey and “religion-sensitive” judges

I agree entirely with Afua Hirsch’s piece in the Guardian today – at least on religitigation, Lord Carey and his call for “religion-sensitive” judges. She’s right: to create a panel of specially faith-sensitive judges would be a wholly retrograde step and needs to be opposed. If a judge gets the law wrong, you can appeal – whether he or she is Sikh, Catholic or atheist. Litigants of all faith and none need no less protection – but no more, either.

In fact providing certain litigants with special judges “sensitive” to their ideology, whether that be Islam, Marxism, veganism or atheism, would risk incompatibility with article 6 of the European Convention on Human Rights in combination with article 14. The article 6 Convention right guarantees the right to a fair trial; article 14 provides that

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion …

So giving certain groups an “especially fair treatment” in the courts would discriminate in their favour, and therefore against others in the enjoyment of the right to a fair trial – and Lord Carey’s proposal in particular would discriminate on grounds of religion.

In fact it would also involve a straightforward breach of article 6, too, in any case where a non-religious person was involved in litigation about religious rights against a religious believer, since the process would be biased precisely in its assumption that religious rights are worthy of special legal recognition, which is often the issue in such cases. Only a faith-sensitive and secularism-sensitive judge could fairly decide such a case, which would I think defeat Lord Carey’s purpose.

What worries me most is that Lord Carey’s intervention signals what may become a new tactic in religitigation: attacking judges personally. Look at this press release about his remarks from the Christian Legal Centre, which says

Lord Carey, the former Archbishop of Canterbury, and several high-profile Christian ‘victims’ who say that have lost confidence in the independence of the judiciary in England, will urge senior judges to stand down from future Court of Appeal hearings because of “disturbing” and “dangerous” rulings they issued in recent religious discrimination cases.

It may not just be, then, that Lord Carey and other Christians believe in general that faith-sensitive judges should be used. Some Christians concerned about their perception of anti-religious bias in the courts may try to get judges in individual cases to step down because they are insufficiently religiously sensitive, or of the wrong religion, or simply not religious at all.

Religious activists have been trying to advance the claims of religion through the courts for some time; so far, to be fair, they’ve been playing the legal ball. But they’ve not been winning – which is why they may now turn to playing the legal man or woman. I hope it doesn’t, but I fear that religitigation may be about to take a nasty, personalised turn.

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  1. To some extent, I am disappointed that this proposal has been refuted so widely because there is a danger that it is given far too much credibility merely by the act of refuting it. Clearly, there would be a far stronger case to have specialised judges sensitive to, say, race discrimination issues but even this would fall down for all of the reasons stated. What annoys me is that there is an argument for saying that, in cases of race discrimination for example, some tribunals are not applying the law properly but, in the case of religious discrimination, the objection appears to be that appellate courts are applying the law correctly and consistently with its statutory wording. This is a matter for Parliament and does not raise any issue of judicial policy.
    .-= James Medhurst´s last blog ..The Equality Act 2010 =-.

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