The niqab; and the Human Rights Act debate

The BBC report that Mr. Justice Silber has turned down a judicial review application by a girl who wanted to wear the niqab, or veil, to school in Buckinghamshire.

This was an attempt to get a different result from that reached in the House of Lords in the Begum case by claiming that th school’s refusal to allow the niqab was irrational in traditional public law terms, as well as a breach of the article 9 Convention right to manifest one’s religion. The irrationality claim was based on the fact that the girl’s older sister had apparently been allowed to wear the niqab in the past.

But it seems to me the claim was really bound to fail anyway, because of Begum. And I’m glad this case has hit the news, because I’m sure many people had retained the impression, after Begum won in the Court of Appeal, that the Human Rights Act meant girls had a right to wear the jilbab or niqab at school. Even though it was quite widely reported, the House of http://www.raybani.com/ Lords’ savaging of the Court of Appeal didn’t seem to have the public impact it deserved.

Which brings me to the human rights debate in the Commons on Monday night, since one of the main contentions of Vera Baird, for the government, and of the Act’s supporters such as the LibDem MP David Heath, is that the Act is widely misunderstood, partly because of various myths that have grown up about it due to inaccurate, or accurate but selective or unintentionally misleading reports of cases. That was the main thrust of the DCA’s review of the implementation of the Act, published last summer; and the Lord Chancellor has begun a campaign to disabuse the public of its various illusions about human rights.

Fair enough: I agree with this. There is a lot of nonsense talked about the Act. But at the same time, it’s important to admit that some of this nonsense has been talked not just by tabloids, but by ministers, judges, lawyers and other advocates of the Act who ought to know better but who have brought the Act into disrepute. One couldn’t cite a better example than the Court of Appeal’s judgment in Begum, that I’ve already mentioned, the one that seemed to say head teachers need to be expert in human rights law. That was utter nonsense from start to finish.

Is is surprising that bureaucrats, as MPs in the debate called them, are risk averse about human rights if the courts are liable to give such mad rulings? And don’t forget that ministers originally told the public sector it needed to create a “human rights culture” going beyond the strict terms of the Act itself. The public sector has acted entirely rationally, and according to its instructions, in the way it has applied the Ray Ban outlet Act. It can’t be blamed for where we are.

And while we’re at it, Parliament’s own Joint Committee on Human Rights is another source of nonsense, undermining the Act and bringing it into disrepute. It suggested the smoking ban might be in breach of human rights, don’t forget! So its chairman, Andrew Dismore, is the last person who can complain about the human rights scaremongering of others.

The debate itself was good fun, with quite good points against the Act made by a number of Conservative MPs. Douglas Carswell made the point that it is the ECHR which is the real problem if you’re against the Human Rights Act. He’s being entirely realistic about this, which I’m afraid David Cameron isn’t being, entirely. Probably the best points against the Act came from Julian Lewis though, who argued that if an Act is systematically misunderstood and misapplied, eventually you have to conclude there’s something wrong with the Act itself. Andrew Selous made the worst points, I thought – he didn’t seem to understand that his pro-religious beefs weren’t with human rights law at all, and that the Human Rights Act might be the best defence for religious rights.

In defence of the Act, Simon Hughes (not an MP who usually impresses me) was by far the best.