BNP jibe at lawyer who opposed veiled judges

A barrister who argued that Muslim judges in Britain should never wear the veil in court has been accused by a fellow barrister of deploying the arguments of the British National Party. Barbara Hewson was commenting on guidance issued to judges earlier this year by the Judicial Studies Board. Miss Hewson, writing in the Bar Council’s magazine Counsel, said it was worrying that the board’s advice contemplated the possibility of veiled judges. Describing the guidance as “astonishing and subversive”, she said: “The United Kingdom is not a sharia state.”

Responding in the magazine, Fatim Kurji wrote: “As for veiled judges and the suggestion that the ‘United Kingdom is not a sharia state’, this is what I call ‘the BNP argument’. It implies a woman who wears a niqab comes at the erosion of British values. Such an astonishingly offensive remark undermines the long-enduring libertarian values.” Miss Kurji said she was no fan of niqab but even less so of a legal system “that restricts access to justice on the basis of religious expression”.

Daily Telegraph, 6 June 2007

We don’t have access to a copy of Counsel, but a correspondent informs us that Hewson’s article is a rehash of the piece published in Spiked back in February, though from the quotes in the Telegraph it would appear to be even more hardline and offensive.

Update:  Thanks to a supporter in the legal profession we have the text of Barbara Hewson’s Counsel Magazine article.


From Counsel Magazine

Barbara Hewson thinks that a system of open justice renders veils problematic

Last November, an advocate in a full-face veil was asked to stand down at an immigration tribunal hearing. The judge said that he could not hear what she was saying.

Thousands of miles away, a senior judge issued a directive that veils were not to be worn, reported in the Pakistan Daily Times on 4 November 2006. Chief Justice Tariq Pervaiz Khan of the Peshawar High Court upbraided a veiled advocate, saying: “You are professionals and should be dressed as required of lawyers.” And he went on: “We [the judges] cannot identify veiled woman lawyers and suspect that veiled lawyers appear to seek adjournment of proceedings in other lawyers’ cases.” He also complained that he could barely hear the woman.

Recently the Judicial Studies Board issued draft “guidance” issued about the wearing of veils in court, recommending that veils should be accommodated unless judges think otherwise. The Guidance has sections added in red, suggesting that this is a travelling draft. So far, the Lord Chief Justice has not formally sought the views of the legal professions on whether niqabs or burqas should be permitted in our courts. Instead, we learn that regard will be had to any comments received when the Guidance is reviewed and updated “in the usual way.”

But the JSB’s default assumption that veils are normative, and that justice can accommodate “diversity” and symbols of “cultural identity” needs testing. The most basic issue for the Bar will be: how can you cross-examine someone in a veil? What the JSB seems unwilling to acknowledge is that treating veils as normative is not about “inclusion,” it is about changing a whole system and philosophy of justice to suit an individual.

This debate does not concern the headscarf-hijab, the commonest “veiling” amongst Muslim women living in Western societies, covering only the hair and neck. There has been extensive debate and litigation on the hijab in other countries, especially France and Turkey, officially secular states, where the hijab is forbidden in educational establishments, for example. The draft Guidance concerns the niqab, or full-face veil, worn by a tiny minority of Muslim women in this country. This has a slit for the eyes but otherwise entirely conceals the woman’s face, head and hair.

And there is also the burqa, the most radical form of veiling. This is a loose garment, which completely conceals the woman, apart from her hands, and has a gauze panel or slit for the eyes. Even fewer people wear this in the United Kingdom.

It is generally accepted that extreme veiling, such as the burqa, has its origins in tribal practices, which predate the introduction of Islam. There is no agreement on whether the Koran requires women to wear any sort of head covering, though there is a passage which in very generalised terms exhorts women to modesty. This is open to a huge range of interpretations, which may vary even across a generation.

For example, the Taliban imposed the burqa on Afghan women relatively recently, though initially it was worn as a sign of resistance to communist invasion. In Iran, the hijab became compulsory after the Islamic revolution. By contrast, countries like Tunisia and Morocco have decided that Islamic law does not require the hijab. In Egypt, the hijab has become popular in the last twenty years, not necessarily for religious or Islamic political reasons, but also as a sign of social respectability or fashion. In Iran, the religious police are cracking down on women who wear coloured headscarves.

Recent court rulings in England have upheld bans on radical Islamic dress in state schools. The House of Lords upheld a ban on the jilbab (a loose full-length garment) in Begum v Denbigh High School in 2006. And early this year, the High Court also upheld a ban on the niqab (R (ex parte X) v Y School). In the latest case, the head explained that a facial cover would inhibit facial communication as part of teaching and learning. And in an emergency, such as a fire, staff need to know about girls’ whereabouts. If a girl were veiled, she could object to removing her veil before a male teacher. And “it would not be beyond the realms of possibility for an unwelcome person wishing to move around incognito to wear a niqab.”

Is there a religious right to wear a veil in court? Academics argue about whether states ought to permit the wearing of headscarves (or other forms of veiling) to give effect to Article 9 of the European Convention (freedom to manifest one’s religion or belief). Professor Dominic McGoldrick’s Human Rights and Religion: the Islamic Headscarf Debate in Europe (Hart, 2006) is a fascinating survey of different cases that have arisen in different European countries.

But Lord Bingham said in Begum: “The Strasbourg institutions have not been at all ready to find an interference with the right to manifest religious belief in practice or observance where a person has voluntarily accepted an employment or role which does not accommodate that practice or observance and there are other means open to the person to practise or observe his or her religion without undue hardship or inconvenience.”

The complex balancing of opposing rights and expectations is illustrated in the case of Sahin v Turkey (2005). There, the Grand Chamber upheld the decision of the 4th section, which said:

“the Court considers that, when examining the question of the Islamic headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. As has already been noted (see Karaduman, decision cited above; and Refah Partisi and Others, cited above, § 95), the issues at stake include the protection of the “rights and freedoms of others” and the “maintenance of public order” in a country in which the majority of the population, while professing a strong attachment to the rights of women and a secular way of life, adhere to the Islamic faith. Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since, as the Turkish courts stated…, this religious symbol has taken on political significance in Turkey in recent years.”

The key question for lawyers concerns the extent to which a system of open justice can accommodate agents who cover their faces, whether they be witnesses, litigants, lawyers, court staff or even judges. The critical factor is that the common law system is founded on orality, that is, the presentation of oral evidence and argument in open court and a careful assessment (whether by a judge or jury) of the interactions between witness and interlocutor, and between lawyer and judge. The JSB guidance glosses over this principle.

If one of the participants wears a face covering, the way they interact with everyone else involved in the process is inevitably altered. I was cross-examining a vulnerable witness the other day, which was screened from the defendant’s view. In response to one of my questions, she smirked. Such facial gestures can speak volumes, in an adversarial context. But in a veil, the impact is hidden.

Do veils give their wearers an unfair advantage or otherwise compromise the rights of others involved in the process? It can be argued that they do. Courts must offer a level playing field to participants, by virtue of Article 6 of the Convention. Veils pose a problem precisely because they place one party in a different situation vis-à-vis the other participants. As the Peshawar Chief Justice said, how do you even know if they are who they claim to be?

Next, facial expression is an important part of non-verbal communication, which plays a substantial part in human interactions generally, and particularly in court. So the prospect of veils in court raises basic questions about how this might affect or distort the oral process. How does a fact-finder assess the credibility of a veiled witness? How does a judge “read” an advocate making submissions, if her face is hidden? Should veiled advocates cross-examine witnesses, which they might find intimidating? Should a veiled juror try a defendant? And so on.

The JSB studiously avoids grappling with any of these issues, implying that they are not really problematic. It says: “Nor should it ever be assumed, without good reason, that it is inappropriate for a women to give evidence in court wearing the full veil.” This is tendentious, and wrong. In a system of open justice, a veiled witness is, by definition, inappropriate. Why else should Parliament have had to legislate for the giving of evidence from behind screens?

The JSB even suggests that there is an analogy with judges taking evidence down the telephone, but this is not normal either. Where are the safeguards for the other parties involved?

Even more worryingly, the JSB contemplates the possibility of veiled judges. It poses the question: are people entitled to see who dispenses justice? This is astonishing, and subversive. The United Kingdom is not a sharia state.

I suggest a different approach is called for. So far as judges, ushers or advocates are concerned, there is a short answer using Strasbourg case law. They do not have to work in the courts. But if they choose to do so, they must accept that employment in this sphere requires unveiling for (amongst other considerations) open justice and security: see cases like Stedman v UK (1997).

Litigants or witnesses are in a different position. People usually sue as a remedy of last resort, and have little choice, if they are joined as a defendant. A witness may attend court under a witness order. If a veiled party simply intends to observe and give instructions to her lawyer, her veil should not be an issue (unless her identity is, for some reason). But if she intends giving evidence, then there is a problem, in a system of open justice. But if she has got that far, she will already be aware of the problem facing her because her lawyers will presumably have told her.

It is possible to deal with such a situation by requiring such a person to give evidence unveiled, but screened from the general public. That happened in a New Zealand fraud case in 2005, where two witnesses wore burqas. It is fair to say one of the witnesses piled pressure on the judge, by threatening suicide. But finally the women seemed content with a screen.

A colleague of mine recently acted for a man from Bangladesh, whose English-born, Bengali wife was having a dispute over a divorce settlement and contact. On one occasion, she turned up to court in aniqab (which, her husband instructed my colleague, she never used to wear), together with an interpreter! The matter turned into a directions hearing, but it is an interesting example of how a participant and her advisers might deliberately deploy both dress and language as a defence mechanism. Such tactics subvert the legal process itself, because they make (and are intended to make) the other party’s case more difficult.

In my view, such brinkmanship needs discouraging, and what we need is a positive reaffirmation of the value of the system of open justice. It is not fair simply to leave it to individual judges, or lawyers, or their clients to object to a veiled litigant or witness on a case-by-case basis, at risk of being accused of being “insensitive.” No doubt the Bar will rise to this challenge.