Law and Lawyers: Controversy over the burqa

Monday 13 August 2018

Controversy over the burqa

Conservative MP and former Foreign Secretary - the Rt. Hon. Boris Johnson MP - caused considerable furore over a piece he wrote for The Telegraph on 5 August - Denmark has got it wrong. Yes, the burka is oppressive and ridiculous - but that's still no reason to ban it. Mr Johnson expressed surprise that Denmark had joined several other European countries - e.g. France, Belgium - "in imposing a ban on the niqab and the burka – those items of Muslim head-gear that obscure the female face." He continued to say that he agreed with those who think that the burka is oppressive - "I would go further and say that it is absolutely ridiculous that people should choose to go around looking like letter boxes; ...."

Nevertheless, Mr Johnson continued to say - I am against a total ban because it is inevitably construed – rightly or wrongly – as being intended to make some point about Islam.

Some restrictions are, according to Mr Johnson, acceptable. He wrote - "If a constituent came to my MP’s surgery with her face obscured, I should feel fully entitled – like Jack Straw – to ask her to remove it so that I could talk to her properly. If a female student turned up at school or at a university lecture looking like a bank robber then ditto: those in authority should be allowed to converse openly with those that they are being asked to instruct. As for individual businesses or branches of government – they should of course be able to enforce a dress code that enables their employees to interact with customers; and that means human beings must be able to see each other’s faces and read their expressions. It’s how we work."

Mr Johnson stated that he is against a total ban "because it is inevitably construed – rightly or wrongly – as being intended to make some point about Islam. If you go for a total ban, you play into the hands of those who want to politicise and dramatise the so-called clash of civilisations; and you fan the flames of grievance. You risk turning people into martyrs, and you risk a general crackdown on any public symbols of religious affiliation, and you may simply make the problem worse."

Maybe this was Mr Johnson - clearly a most ambitious politician - seeking to position himself for an almost inevitable Conservative Party leadership challenge. His use of the phrases - "looking like letter-boxes" and "looking like a bank robber" were irresponsible and ill-advised. The Muslim Council of Britain make the point well - "The impact of Boris Johnson's comments this week." They say -

"Since Boris Johnson’s Islamophobic remarks comparing Muslim women who wear the niqab to robbers and letterboxes, his words have had a negative and potentially dangerous effect on Muslim women and Muslims generally.

On LBC radio, a Muslim woman recounted her experience of being abused on the street and mocked by being compared to a letterbox. A Muslim woman and her children were abused outside a medical centre. Another Muslim woman was called a “f***ing letterbox” by a lady in Parsons Green. Two pensioners began to loudly mock the niqab as they watched a BBC News interview in the waiting area in front of a Muslim woman wearing the hijab."

The Muslim Council is pressing for "an independent inquiry into Islamophobia in the Party.”

Mr Johnson has an unfortunate track-record for offensive comments. In the past he has referred to "piccaninnies" with "water-melon smiles." Nevertheless, the general thrust of his recent article was actually in opposition to a total ban. He is to be 'investigated' by a Conservative Party panel - The Independent 9 August.

There is a need for politicians to recognise that there is probably a large element of public opinion against the wearing of face-coverings in public places. These matters ought to be the subject of responsible debate but any such debate is not helped by inflammatory phrases such as those of Mr Johnson.

However that may be, the Metropolitan Police Commissioner decided to ask her ‘very experienced officers’ if Boris Johnson’s comparing of women in burqas to ‘letter boxes’ could constitute a hate crime. Unsurprisingly, they told her that the threshold for criminality had not been passed and she duly let the world know that the former Foreign Secretary would not be investigated - The Spectator - Is Boris Johnson a Policing priority in London.

Hate Crime:

The Crown Prosecution Service (CPS) describes "hate crime" as "a range of criminal behaviour where the perpetrator is motivated by hostility or demonstrates hostility towards the victim's disability, race, religion, sexual orientation or transgender identity. These aspects of a person's identity are known as 'protected characteristics'. A hate crime can include verbal abuse, intimidation, threats, harassment, assault and bullying, as well as damage to property. The perpetrator can also be a friend, carer or acquaintance who exploits their relationship with the victim for financial gain or some other criminal purpose."

The law has a range of offences which can arise from speech or publication of material. Examples include the Public Order Act 1986 section 18 and also Part 3A of the same Act. Notably. section 29C, states:

Publishing or distributing written material

(1) A person who publishes or distributes written material which is threatening is guilty of an offence if he intends thereby to stir up religious hatred or hatred on the grounds of sexual orientation.

(2) References in this Part to the publication or distribution of written material are to its publication or distribution to the public or a section of the public.

The European Court of Human Rights has published this factsheet on Hate Speech.

Dress Restrictions - Position in Europe:

There has been considerable debate in Europe over questions of religious dress and whether the law ought to be used to ban or restrict the wearing of symbols or certain forms of dress and, in particular, dress which prevents the face being seen. On 31 May, the BBC looked at the current situation in various States - HERE. Denmark is the latest European State to impose a ban.

The European Convention Article 8 (Right to respect for private and family life), Article 9 (Freedom of Thought, Conscience and Religion), Article 10 (Freedom of Expression), and Article 14 (Prohibition of Discrimination) are engaged in this debate. The articles are reproduced below and Articles 8, 9 and 10 are qualified rights / freedoms - see Articles 8.2, 9.2 and 10.2.

The European Court of Human Rights has upheld bans - see S.A.S v. France (2014) and Belcacemi and Oussar v. Belgium (2017). There is a good discussion of the Belgium judgment on the UK Human Rights Blog - 19 July 2017. The E Ct HR has published a Factsheet on Religious Symbols and Clothing. The E Ct HR has found in particular that restrictions had been enacted with a view to guaranteeing the conditions of “living together” and the protection of the rights and freedoms of others and that it was necessary in a democratic society.

The E Ct HR position and, in particular, the concept of "living together", has been the subject of trenchant criticism - see for example, EJIL: Talk! SAS v France: Does anything remain of the right to manifest religion?

Position in legal proceedings:

May, for instance, a defendant wear face covering in legal proceedings? I recall this arising as far back as 2007 when a Magistrates' Court was faced, apparently without any warning, with a defendant wearing what was described as a niqab. Subsequently, guidance was issued by the judiciary.

Today, it is necessary to look at the Equal Treatment Bench Book - updated in May 2018. The Bench Book points out (page 9-5) that "wearing the veil" is a very sensitive issue and "very much a matter of judicial discretion unless and until an appellate court gives guidance." The Book then goes on to provide some guidance for non-criminal and criminal cases: