This essay is going to demonstrate the possible legal difficulties that will be faced in the passage and enforcement of the Clothing Degrading to Women (Prohibition) Bill 2011, and go on to argue that it will not be a legally feasible legislation.
The argument will be established as follows: first, it will illustrate that the envisaged legislation is in interference with the principle of minimum criminalisation by showing it is not absolutely necessary to criminalise conducts detailed in the bill; second, it will argue that the bill is incompatible with the principle of legality and will not be legally feasible in enforcement; last, it will contend that such legislation violates the right to the freedom of religion and the right to the freedom of expression, thus resulting in a breach of Article 9 &10 and possibly a violation of Article 14 of the European Convention on Human Rights (ECHR). Identification and Discussion of Legal Issues Interference with Principle of Minimum Criminalisation
In a written reply to a parliamentary question, Lord Williams of Mostyn stated that criminal offences ‘should be created only when absolutely necessary’ and whether ‘the behaviour in question is sufficiently serious to warrant intervention by the criminal law’ should be considered before the creation of new offences. Husak also suggested in his work that the criminal law should not be used to prevent ‘trivial harm or evil’. The underlying reason for the principle is to ensure potency of criminal censure. If less serious conducts are being criminalised, criminal law will be at risk of losing its censure function. It should also be noted that it is preferable to use alternative social control to deal with undesirable behaviours, such as education and rewarding good behaviours.
Considering section 1(1) of the envisaged legislation in question, liberalism and individual autonomy in the United Kingdom will be significantly undermined if the Government start telling people what they should and should not wear. It is fundamentally important for a liberal, democratic county to allow its people to be treated as ‘civic equals’ and ‘with equal concern and respect’, regardless of their identities and ‘normative requirements’ arising from such identities. Furthermore, such belief has brought along one of the principles of criminalisation—the harm principle. On the basis of the harm principle, conducts harming others should be prohibited, and a conduct is considered as harmful if it ‘infringes the autonomy of another’ or ‘causes serious offence to another’ .
Base on the above definition, it would be unreasonable to argue that women will do harm to others by wearing the prohibited clothing detailed in the provision. Some argues that this definition of the harm principle is too narrowly construed and a refined statement was given by Gardner and Shute to protect individuals against more remote harms: ‘it is enough to meet the demands of the harm principle if that, if the actions were not criminalised that would be harmful. ’ Even under this broader definition, it is justifiable to state that the wearing a burkha, niqab or hijap will be harmless to others as such conduct does not possess any infringements on individual autonomy of another.
From the point of view of some country, it is indeed possible to contend that particular manifestations of religion, such as the wearing of burkha, may result in a ‘diminution of public good’. As in the example of France, civic equality is understood as ‘having positive values of a republican substantively egalitarian sort’, hence it can be said that the wearing of burkha has a possibility of harming ‘the ethos of civic equality’ in that manner. However, it is important to note that such arguments will become considerably weaker in the United Kingdom, as civic equality and freedom here have a much more negatively understood as ‘freedom from coercion and discrimination’. Moreover, the punishments for offences in both sections are certainly disproportioned and cannot be justified.
Moving on to section 2(1) of the Bill, although harm can be more easily established in the context of men forcing women to commit an offence under section 1(1) of the Act, it is inadequate to say harm is done if a man merely encouraged a woman to wear the prohibited clothing. Encouraging women to commit an offence may be morally inappropriate; however, it will clearly be a ‘trivial evil’ that ought not to be criminalised. This will also lead to conflicts with the principle of legality which will be addressed in the next section of this essay. Conflicts with the Principle of Legality The proposed Bill will encounter issues with the principle of maximum certainty under nulla poena sine lege. It was stated in Kokkinakas that the criminal law must not be ‘extensively construed to the accused’s detriment, for instance by analogy’ and an offence must be ‘clearly defined in law’. First, section 1(1)(d) is not clearly defined as it only vaguely refer to ‘any piece of clothing resemble those under (a)-(c) rather than pinpointing the exact category of clothing.
The lack of certainty will result in great difficulties in enforcing the Act. Second, the word ‘encourage’ used in section 2(1) lacks precision and will give rise to a controversial debate on what should amount to an ‘encouragement’. Such provisions therefore should not be passed in order to prevent public confusion. Incompatibility with Human Rights Law The Human Rights Act 1998 was passed to promise the protection of individuals’ rights under the ECHR.
According to Article 9 and 10 of the ECHR, everyone has the right to freedom of religion and freedom of expression. The right to manifest religious belief enables individuals to exercise her will to carry out what she ‘sincerely believes to be her divinely ordained duty’. It may only be restricted when it is ‘prescribed by law’ and are ‘necessary in a democratic society’. Interpretations of ‘law’ were given by the European Court of Human Rights in Silver v UK and Norris v Government of the USA. In the judgment of Norris, it was stated that in order for a rule to be a ‘law’, it has to be described with ‘sufficient precision’ to allow citizens to realise what type of conducts is in accordance with the law.
Consequently, it can be attested that such restrictions imposed on individuals by the Government as prescribed in the Act are not ‘prescribed by law’ by referring to the above discussion on the principle of maximum certainty. In light of the argument that the wearing of the prohibited religious may cause offense and the ban is ‘necessary’ to protect equality between the sexes, Judge Tulkens pointed out ‘the Court has never accepted that the interference… can be justified by the fact that the ideas or views are not shared by everyone and may even offend some people’. Furthermore, the envisaged legislation may even attenuate gender equality by sexing the subject to female in section 1 and male in section 2 of the Act. This may result in a breach of Article 14 of the ECHR—Prohibition of discrimination. Conclusions and Recommendations
All things considered, the Act has serious infringements on the individual rights which should normally be conserved by the State. It may be justifiable to discourage women from wearing seemingly oppressive garments, but imposing that by law is certainly wrong. Despite some strong disapproval of the religious clothing, women’s right to freedom of wearing what they want should be protected. Based on all the above arguments, this essay concludes that the Clothing Degrading to Women (Prohibition) Bill 2011 will not be legally feasible and it is also very undesirable in a political context for the Parliament to implement such legislation due to the high possibility of inducing overwhelming opposition from the public.