Anna Jobe is a third year PhD student at Durham Law School. Her thesis research concerns the regulation of religious symbols.
“I do not know what the definition of ‘draconian’ is, but it certainly does not sound very good, and I am sure that it does not apply to my Bill.”
– Philip Hollobone
On the 28th February 2014, the Face Coverings (Prohibition) Bill had its second reading in the House of Commons. The debate will be resumed on May 16th. Introduced as a Private Members’ Bill, it represents Conservative MP Philip Hollobone’s second attempt to prohibit the wearing of ‘certain face coverings’ in public places (after his 2010 Face Coverings (Regulation) Bill). It forms part of a series of Tory Private Members’ Bills dubbed the ‘Alternative Queen’s Speech’, which include the return of national service and the death penalty, as well as a national ‘Margaret Thatcher’ day. By Hollobone’s own admission, despite being framed in neutral terms, the Bill is designed to target two coverings in particular: balaclavas and full-face Islamic veils (hereafter ‘veils’). In the context of increasingly punitive measures in other parts of Europe – including criminal sanctions in France and Belgium – the passing of this Bill is not quite as implausible as may first appear.
It would render guilty of an offence ‘a person wearing a garment or other object intended by the wearer as its primary purpose to obscure the face in a public place’ (s.1(1)). Exceptions to this include where it is worn: pursuant to legislative/regulatory provisions; as a necessary part of activity directly related to a person’s employment; for reasons of health and safety; for the purposes of a sporting activity or ‘art, leisure or entertainment’; or in a place of worship (ss.1(3)(a-f)). The Bill dictates that where members of the public are licenced to access private premises for the purposes of giving or receiving goods and services, the owner of the premises, or his agent, would not contravene any law in requesting the removal of a covering, or requiring that the individual leave if this were refused (s.2(a-b)). It prohibits anyone providing or receiving a public service in person from wearing such a covering (s.3(1)(a-b)).
During second reading Hollobone advanced several arguments in support of his prohibition. This blog post aims to outline why these are inadequate.
(1) Veil is not a ‘necessary requirement’ of Islam
Hollobone states on several occasions that it ‘is not a religious requirement in Islam for a woman to cover her face’, and twice refers to the veil as being worn for ‘supposedly religious’ reasons. He explicitly draws a ‘parallel’ with balaclavas whilst recounting the experience of seeing a veiled Muslim woman in a playground: ‘[t]hen I found out that it is not a religious requirement… and I wondered how I would feel if… it was her husband next to her who was wearing a full-face balaclava… Of course it would make me feel very concerned indeed…’ Two points need to be made here:
Firstly, Hollobone seems to suggest that because the full-face veil is not a uniformly interpreted ‘requirement’, that its prohibition is acceptable. This argument holds no weight. The UK government tried – and failed – to deploy it in Eweida v UK (2013) 57 EHRR 8, arguing that Eweida’s wearing a visible cross was not a ‘recognised religious practice or requirement of Christianity’ (para 58) and thus should not be entitled to Article 9 protection. The ECtHR disagreed. Not every act will count as a ‘manifestation’ of belief for Article 9 purposes, but its protection is not limited to generally recognised forms of religious practice, and there is no requirement for individuals to establish that they acted in fulfilment of a duty mandated by the religion in question (para 82). Applying this analogously, perhaps Mr Hollobone should be reminded that it is neither his nor the state’s place to assess the legitimacy of the ways in which religious beliefs are expressed.
Secondly, his phrase ‘supposedly religious’ is an interesting linguistic choice. The implication is that the reasons for veiling are not actually religious; that there is something else at play. Perhaps he might be forgiven if the implication were that the reasons for veiling were unknown to him – this could be rectified through research or conversation. However, this is not the case. Hollobone states that, ‘here is a woman who does not want anyone else to look at her… Why would anyone want to hide their identity from everyone else?’ In reducing the wearing of the veil to a desire to conceal identity, he slips into the territory of purporting to ‘know’ the intentions of the woman. In doing so he simultaneously constructs her (Said, Orientalism), and silences her, rendering invalid or unnecessary her own articulation of any differing motivation for veiling. Not only is this both ethnocentric and paternalistic, it is also contrary to an array of empirical research highlighting the diversity of motivations for veiling, which include deeply held religious convictions.
(2) Veil as alarming, distressing, discourteous, and alien to the British way of life
This series of arguments forms the core of Hollobone’s objection to the veil. He asserts that it causes ‘alarm and distress’ to many people in ‘our country’ who ‘fear that the nation is heading in the wrong direction’. He states that the veil is ‘alien to the British way of life’, which according to him involves ‘neighbourliness’. He suggests that veiled women have ‘difficulties… undertaking normal everyday human interaction’, and by implication he describes the veil as unnatural, ‘it is part of the natural way of things that when we go about our daily lives, we interact with our fellow human beings because we can see their face’. He states that upon seeing a veiled woman, he felt that ‘at a very basic level, this is discourtesy’.
Furthermore, on several occasions Hollobone uses language suggesting the number of individuals wearing the veil is ‘increasing’, alluding to people seeing ‘Britain’s high streets being increasingly dominated by… Islamic women who are covering their faces in full’. He links this to effective integration, contending that the veil ‘is not helping’ integration, and ‘cannot promote community cohesion on any level’.
Hollobone appeals to the dominant majority’s empathy with his subjective discomfort at seeing a veiled woman. He deploys a particular, exclusionary, construction of the ‘British way of life’, where he both controls what being British is (being ‘neighbourly’), and excludes from participation in the nation anyone who does not fit that mould. Veiled women are not – and under Hollobone’s construction – can never be British. This is exclusionary, and as Rushanara Ali argues, ‘narrow-minded’. Gerald Kaufman states that ‘[t]he way in which Muslims live in this country is another part of the British way of life’. ‘Ways’ may have been a more appropriate term here, in recognition of the fact that ‘Muslims’ are not a monolithic category, however the sentiment in terms of belonging remains the same, and the diversity of the British experience should not be reduced in such a harmful way.
Hollobone’s inflammatory rhetoric concerning the domination of Islamic women ties in with irrational fears about the impending ‘take-over’ of Islam. He also unhelpfully constructs the veil as an obstacle to integration, continuing to polarise the ‘us’ and ‘them’ that exacerbates difference and increases suspicion. It also shifts the responsibility for effective integration to the Muslim woman as an individual – she must unveil, as she is the problem – rather than acknowledging the responsibilities of the state and its institutions to foster open-mindedness, communication and cohesion. To quote Lyn Brown: ‘[this House] should not stoke the flames of suspicion and fear and the illogical hatred of difference that rip… communities apart.’
(3) Veil as problematic for identification, and effective communication
Hollobone argues that the veil is problematic for identification and for communication. He references inter alia CCTV, passport control, and ‘the increasing number of instances… where criminal acts are taking place with men dressed as Islamic women in full burqas… which of course brings Islam into disrepute.’ He argues that in court it could be problematic if witnesses and defendants wore veils. He also highlights his concern that it must be ‘extremely difficult for veiled women who are deaf to engage with other veiled women in their communities’.
Hollobone here vastly overstates the problem, positing his Bill as a panacea for an artificially inflated issue based on sensationalised news stories. He plays on concerns about crime and safety, but could not offer any concrete examples beyond one incident where an individual subject to a ‘Terrorism Prevention and Investigation Measure’ escaped a mosque wearing a burqa – an example provided for him by Keith Vaz who highlighted that this was to his knowledge a solitary incident. Hollobone could not provide any example of an individual refusing to remove their veil when asked. In terms of the judiciary, Vaz also noted that the Lord Chief Justice has started a consultation process with a view to updating judicial guidance. The system is able to respond to new challenges without this prohibition. The evidence does not outweigh the severity of the proposed restriction for the women concerned.
(4) Prohibition on the veil is ‘working’ in France
Hollobone asserts that an equivalent law is ‘working’ elsewhere. He ‘believe[s] that in France, for example, community cohesion is better today as a result of the banning of the burqa than it was before such legislation was introduced.’This is, quite simply, an ill-researched, inaccurate and irresponsible assertion. Lyn Brown helpfully summarises the results of empirical research on the French ban outlined in the Open Society Justice Initiative Report. They highlight the potential criminalisation of an otherwise law-abiding group; increased mental health issues and social anxiety; increased reliance on male relatives; fear of abuse or attack; ‘legitimised’ Islamophobic attacks; and the feeling that the ‘state has sanctioned racist intolerance and abuse’. Hollobone also fails to recognise that the French measure is currently under the scrutiny of the ECtHR’s Grand Chamber in S.A.S. v France (Application No 43835/11) – on this see an interesting blog post by Saïla Ouald Chaib. Perhaps it would be prudent to wait for the outcome of this case, before rushing headlong into his own discriminatory measure.
Hollobone’s arguments stem from his subjective discomfort at not being able to see these women’s faces. In substance, they primarily rely on unsubstantiated constructions of women who wear full-face veils, inaccurate assertions and generalisations about both the extent of the ‘problem’ and the potential effectiveness of the proposed law, and a damaging normative conceptualisation of what it is to be ‘British’, that excludes the ‘other’ whilst simultaneously affirming the privileged position of the dominant majority. Given his own socio-political milieu, as a white, male, private school and Oxford educated member of the Church of England, who self-identifies as ‘very much from a Christian background’, one might have thought he would be more eager to engage further with individuals who would be directly affected by this measure.
As was eloquently put in the debates, this Bill would violate the freedom of choice, expression and religion of the ‘tiny minority’ of women targeted. In essence, ‘[t]he Bill is about singling out Muslim women, telling them how to dress, and threatening them with arrest if they do not comply.’ This seems to me – despite Mr Hollobone’s protestations – to constitute the very definition of ‘draconian’, and such a prohibition, in this author’s view, should be vehemently opposed.