 Dw i'n meddwl o'ch gyflaenau, so eu gofio'n hollion a'r gwahodd, os ydych chi'n gweithio'r ddweud y ddechrau. Yn oedd noneb bod wedi gael eu botlennu at oedd y ddamol sy'n meddwl i ddweud cyfrifiad mewn gwirionedd beth dylai i ei hynny mewn ddweud o gweithio. Dyna gweithio lwyddo ac wnaeth eich sefydlu o'r cwymru i'r llymau. My starting point, as you will have seen, if you've looked at the paper, is that courts fapes an essential choice over to whether to recognise or to ignore questions of conscience that come before them. In the paper I set out some of the reasons for both recognising or ignoring, and then if they choose to recognise three subsidiary questions that arise. y gall o bwysig o aethodau o'r pryd burgyn dechydig rydyn ni allan chi fod yn ymfysgol Rhan, o'r pethau, yma o gymrydau gennig pan dda'r hwn o'r bwysig o boblion o'r phodau, o'r cwm 떡wch yn y byw, o wbl yn decheg yw rhan, o'r bwysig o bwysig o weithgupod, o'r bwysig o bwysig o le프, o'r rhan o'r bwysig o unolwg erbyn. 3. Y cwestiynau yw oedd ychwynigwch gyda'r gwerthoeddod y cwestiynau cyflwyno a'r gwylliannol cyd-doedd y gwerthoddod o y rhesiol. Yn ei hun, rydyn nhw'n angen gwisio'r ffas expressions ardal yn cael ei ddweudiaeth mewn ddim yn granteirau cyfrifiadau. Prygau oedd y cwestiynau fel gwaith. Roedd y pethau yn cael ei ddweud sy'n cwestiynau ychwynigwch cwestiynau bobl ac mae'n gofynig. First law, you can say, well this actually fits a kind of positive understanding of law, we make a strict separation between law and morality, as Hart says in the concept of law, determining the legality of a law's question from where we are going to obey it, if it gets our conscience. Secondly, as Peter said this morning, why should the cost of a conscience claim effectively be reallocated? Why shouldn't it simply fall on the person whose conscience they claim is infringed? Isn't that the right way to go? In a certain sense as well, by ignoring our conscience matters, the courts treat behaviour consistently. The same behaviour is treated in the same way regardless of why the person is behaving the way they have. You see that particularly in discrimination cases that we are quite familiar with. You can also argue that traditionally preparedness to suffer, our for one's conscience, has been seen as a mark of sincerity, particularly in relation to civil disobedience. Although I would say with Julian this morning that conscience rejection is in a slightly different category to civil disobedience, it's not necessarily a public act where questions of sincerity arise in exactly the same kind of way. Conversely, you could say, as indeed Lady Hale in the Freddie case argues, that that's kind of the duty of reciprocity, that if you benefit from one set of anti-discrimination laws you should be bound by another, isn't that part of the social compact? So shouldn't courts be obliged, shouldn't they be neutral to these arguments of conscience in consequence? OK, but what are the arguments then for recognising? Well, I'd start from the position that failure to recognise in the sense privatises or to put it more strongly as some of the critics do trivialises the nature of conscience claims. And so they become purely private matters in a certain way and of course sometimes say well you can believe that or in fact you can even teach it in a religious community that one thing you can't do is to act upon it. And of course that causes a difficulty doesn't it because on the one hand the courts are saying well these are important beliefs we think you're sincere but they're not so important you must be allowed to be able to act on them. There's a kind of dissence, a contradiction there, felt particularly acutely, thought by people who are trying to integrate as those who make these conscience claims are, trying to integrate their beliefs on the one hand and their behaviour on the other. Many writers have made the parallel between conscience and sexual identity and argue that this is a kind of form of closeting of religious or other identities that's taking place. Even if it's not so blatant or obvious I would nonetheless say that the way that the law sets up some of these questions particularly in discrimination context has a kind of power to it that ignores or downplays conscience questions. So for example when as a matter of discrimination law we reduce a matter of employment or serving someone to simply a question of supply we've taken a choice and we've embodied a choice in law that actually cuts off the moral questions that might be behind how I do my work. We've effectively ruled all of those to be impermissible and that's quite a strong position to take. On the other hand I argue in the paper that there's actually quite a lot legally to be said for recognising conscience claims. Certainly it's a matter of human rights law. So we have an interesting and important decision in the Flamenos against Greece where the court of European Court of Human Rights turns the question on its head and says actually the failure to recognise that some law breaking is motivated by conscience is a category mistake. It's not to recognise that there is a difference between this kind of law breaking and other law breaking. In other words it's irrelevant. Equally we've got the decision in the important conscription case by the Grand Chamber of the court in a case from Armenia, the Bay of Tain case where the chamber said I quote although individual interests must on occasion be subordinated to those of the group democracy does not simply mean that the views of the majority must always prevail. A balance must be achieved which ensures a fair and proper treatment of people from minorities and avoids any abuse of a dominant position. Thus respect on the part of the state towards beliefs of a minority religious group like the applicants he was to Homer's witness by providing them with the opportunity to serve society as dictated by their conscience might far from creating inequalities or discrimination as claimed by the government rather ensure cohesive and stable pluralism and promote religious harmony and tolerance in society. Finally a third human rights argument we've got of course the employment cases and the group of cases that went before the court of human rights in Ouida and the UK where the domestic approach of effectively ignoring conscience claims was found to be incorrect and the court found that after the line wasn't engaged although it could be balanced and out of the way. So to make your argues for a recognition approach rather than ignoring. Now what about the subsidiary arguments? First of all this question of statutory silence. So is it somehow impermissible to raise conscience claims in court when there's no specific statutory exemption or indeed when parliament is actually considered the place to exemption but has decided against it. The amendment let's say failed during the parliamentary process that essentially was the was the case with the majority of the straws a question that finally reached the courts in Liddell that had been a campaign to provide for a second exemption and it did fail. Well I argue that silence at this time does not preclude a later legal challenge for several reasons. First of all as in the marriage of straws situation when you read the parliamentary debates it may become apparent that actually the possibility of a legal challenge was envisaged in those debates and in fact was one of the reasons why an exemption was not granted in the court. The first place because you can go to the court you don't need a statutory exemption. Secondly anyway I think when did legislators become the last word on what the menial constitutional rights is fairly obviously not. So to argue that simply because there's a law and it says this somehow precludes a later challenge flies against our whole practice. In fact just to give you an example take the Ashes Bakery case. The Northern Island Assembly has rejected four times in successive years our proposals for same sex marriage. Does that make it impermissible to bring a legal action of this kind? Of course it doesn't. Any more than it will on the other side of the argument. And then of course we've got situations where the legislation in question simply doesn't really touch all the issues of conscience. You'd have to have a crystal ball to know that the legislation somehow covered all the fields. This is after one of the places I think where you see and I probably disagree. So I don't regard the silence argument as being anyway precluding. Secondly then, right, okay. Second then quickly, what about this question of how should the courts treat the nature of these claims? In the paper I argue that one of the problems with how courts are often seen as dealing with these claims is they don't adopt what Chris McRoddon calls an internal cognitive aspect. They don't put themselves in the chutes of the people who are making the claims and trying to do the extra work to understand what the claim means from their point of view. And in the paper I have a section which explains that in the history of conscience, and this is not a recent phenomenon at all, in the history of conscience claims, indeed the history of religious freedom. I will find it grounded repeatedly on the notion that what's involved are not rights or choices but dutits. One Catholic writer puts it very piffily, conscience has rights because it has dutits. This is the whole basis for the argument. Failing to recognise the extent to which individuals face a choice between the duty of obeying the state and the duty of obeying their conscience really underlies a number of the problems that the court approach these questions I argue. And, incidentally, that's not just a religious viewpoint. You find exactly the same perspective, for example, in 19th century American writer Henry David Thoreau who argues that Congress doesn't settle my moral duties when it makes law, so when it decides to go to war with Mexico. But that doesn't stop me from having a moral obligation to decide what I'm going to do about that. So, we're dealing with moral dutits and, of course, need to understand that. Okay, thirdly and very quickly, what about this question of how does this relate to the rights of freedoms of other people? Well, in the paper I explain, yes of course I accept that, but often it's not a straightforward calculation that has to be done because there are notions of indirect harm that frequently feature on the one side. It's not a straight question, for example, of, I would say, of a harm that directly affects gay people, often the categories of harm. I would say are indirect and are more to do with offence rather than denial of service and always being the case. Secondly, of course, we can point to statutory examples where the rights of others are actually dealt with rather neatly because the statutory test, if you take, for example, section 4 of the abortion act, focuses on the directness of your participation in the act that you find to be morally offensive. So, the statute tries to deal with the question of harm in a way that bounces. But then thirdly, of course, inevitably, we come to this very difficult question about balancing and proportionality. And this is a bit of paper I can't describe in any detail here. But just to say that although I do think proportionality balancing have had their place, in the paper I'm trying to explain why often the issue does not correctly arise because of what I call a reversibility approach. And so my approach, for example, to the Liddell case before the European Court of Human Rights is actually to favour the view of the minority in that case. And I would argue with them that there was no legitimate aim that triggered the question of a right or freedom of someone else that had to be balanced in the first place. You'd have to see the paper and read through what's rather a complicated argument, but I can be happy to deal with questions about that. John's giving me the look, so I think I better leave it there.