Samuels, Alec

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Mountbatten Journal of Legal Studies
Freemasonry. Is Freemasonry Lawful in
England? Can the Government or Other
Public Body or Employer Prevent or
Penalise Membership of Freemasonry?
Alec Samuels
Freemasonry is a somewhat controversial institution. It has been in
existence for three hundred years. Some people support it, belong to it and
participate in it, claiming that it is a discreet Christian benevolent
association. Some people oppose it, condemn it and seek to prevent or
penalise membership of it, claiming that it is a secret society always
promoting its own members at the expense of others.'
The issue has come before the European Court of Human Rights
("ECHR") in Maestri v Itall and NF v !tali and Grande Oriente D'Italia
Di Palazzo_Guistiniani v Italy.4
The critical article of the European Convention on Human Rights is
article 11:
1. Everyone has the right to freedom of peaceful assembly and to
freedom of association with others, including the right to form and to
join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic
society in the interests of national security or public safety, for the
prevention of disorder or crime, for the protection of health or
morals or for the protection of the rights and freedoms of others.
This article shall not prevent the imposition of lawful restrictions on
the exercise of these rights by members of the armed forces, of the
police or of the administration of the state.
I Freemasonry does not appear to have generated much literature. The masonic legacy and early anti-masonry
are traced by J.M. Roberts, The Mythology ofthe Secret Societies (Seeker and Warburg, 1972), chapters 2 and 3.
2 (2004) 39 EHRR 38, P 832.
3 (2002) 35 EHRR 4 P 106.
4 (2002) 34 EHRR 22, P 629.
120
Mountbatten Journal of Legal Studies
The ECHR has emphasised three conditions or requirements that
must be fulfilled to justify restrictions on Freemasonry, as they are clearly
an "interference":
1. the restrictions must be prescribed by law;
2. the law must have a legitimate aim and
3. the restrictions must be necessary in a democratic society.
Prescribed by Law
Many continental countries have a written constitution, which,
directly or indirectly, may be interpreted to make provision for
Freemasonry or have specific laws or decrees, which specifically make
provision for Freemasonry.
In England there is no such constitutional or statutory law. However,
the European Convention on Human Rights, including Article 11, is
incorporated into English law by the Human Rights Act 1998.5 Treason,
sedition, anti-terrorist legislation, official secrets, conspiracy and similar
criminal laws, are directed to the protection and safety of the state. In
England the issue normally arises in respect of public office and in respect
of employment, public or private, and may arise in respect of membership
of a particular group or association or club. For example, appointment to
the judiciary may involve an undertaking not to belong to Freemasonry.
Also, a prospective employer, public or private, may require a prospective
employee not to belong to Freemasonry. The Lord Chancellor, and in due
course the Judicial Appointments Commission, appoints the judges.
References, good character and medical fitness are required, not
unreasonably and, lawfully. The prospective employer may require any
number of terms in a contract of service subject to the restrictions placed
by law on sex, race and disability discrimination. Is a "no-Freemasonry"
requirement prescribed by law? However, even if prescribed by law, a
requirement may still infringe the Convention.
Legitimate Aim
There must be a legitimate aim. By reason of their membership of
Freemasonry a Freemason may be incompetent, biased, unfair, favouring
Freemasons at the expense of others, promoting conflicting loyalties
and/or acting on outside instruction or influence; their membership and
5 s 1(3) and schedule 1.
121
Mountbatten Journal of Legal Studies
conduct may be altogether incompatible with the appointment or work. In
Maestri there was even a suggestion that Freemasonry in Italy was
involved in the mafia, crime and improper infiltration and perversion of
the public service. Apparently British Freemasonry expressed some
concern about Italian Freemasonry.
Conversely, the restrictions may be imposed for non-legitimate
reasons, such as dislike, hostility, spite, malice or jealousy.
Necessary in a Democratic Society
The nature of the work done by the Freemason may well be
significant. The Judge must be independent, the Minister must act with
integrity, the lecturer and researcher must be open-minded and the
manager must be fair; but, with no disrespect to perfectly useful members
of society, Freemasonry may not much affect the work of the bus driver,
the road mender or the plumber.
In Grande Oriente an applicant for a post in the public service had to
make a declaration of non-membership of Freemasonry. The Court held
that membership of Freemasonry was not reprehensible, the prohibition of
membership in the public service was not proportionate and the right of
association could not be restricted for those in the public service.
Ultimately the issue must tum on the evidence. So far as is known,
no credible evidence has ever been produced in a court of law in England
to support any accusation of impropriety in their work against
Freemasonry or Freemasons. People belong to all kinds of associations,
religious, political, social, cultural or whatever, which do not normally
interfere with the proper performance of work although sometimes a
measure of restraint or discretion has to be exercised.
Clear and Precise
The restrictions or limitations must be clear and precise, not vague
or ambiguous, though a degree of flexibility may be permitted as not every
situation can be foreseen. They must clearly set out what can, and cannot,
be done. They must be published, available, accessible and appropriately
targeted, e.g., different language and different presentation may be
necessary for senior professional people than for ordinary manual workers.
Freemasons must be able to regulate their conduct and behaviour in any
given situation. The consequences of any breach must be clear and
foreseeable. Supposing "participation in Freemasonry activities" is
122
Mountbatten Journal of Legal Studies
prohibited, can the person remain a member, a dormant member, just
paying a subscription and receiving the literature? Particular care must be
taken where sanctions may be involved, e.g., financial penalties, reduction
in status, loss of promotion or dismissal. A proper disciplinary procedure
will be required; there can be no exercise of unfettered arbitrary
discretionary power. The scope and manner of exercise of any sanction
must be clear.
Judge
The position of a judge is particularly sensitive. He must be, and be
seen to be, independent and impartial. He takes the oath of allegiance and
the judicial oath6 : " .•. and I will do right to all manner of people after the
laws and usages of this realm, without fear or favour, affection or ill will.
So help me God". The judge must be beyond criticism. In Pinochd it
emerged after judgement that the wife of one of the judges, Lord Hoffman,
was connected with Amnesty International which had intervened in the
case. The judgement was set aside, reluctantly, because of the reasonable
apprehension or suspicion of bias. No personal bias or impropriety was
attributed to Lord Hoffman.
In the famous Seddon case the convicted murderer made a masonic
sign to the judge. Mr Justice Bucknill said:
From what you have said, you and I know we both belong to one
brotherhood, and it is all the more painful to me to have to say
what I am saying. But our brotherhood does not encourage
crime; on the contrary it condemns it. I pray you again to make
your peace with the Great Architect of the Universe. 8
He then proceeded to sentence Seddon to death in the normal way.
Subsidiarity
In accordance with the principle of subsidiarity, a considerable
margin of appreciation must be given to the national law in the light of the
, Promissory Oaths Act J 868.
7 R v Bow Street Magistrates, ex parte Pinochet (no 2) (2000) 1 AC 119.
, Trial olthe Seddons, edited by Filson Young, Notable British Trials, William Hodge, second edition (1952).
123
Mountbatten Journal of Legal Studies
particular national circumstances; the situation in Italy may be very
different from the situation in England.
Other articles
In addition to Article 11 (freedom of assembly and association),
Article 7 (no punishment without the law), Article 8 (respect for private
and family life), Article 9 (freedom of thought, conscience and religion),
Article 10 (freedom of expression) and Article 14 (prohibition of
discrimination) have been pleaded and argued, but the ECHR has
determined the Freemasonry cases solely on Article 11.
Conclusion
The position in English law, subject to appeal to the ECHR, over
Freemasonry remains open to doubt. The ECHR principles on article 11
seem clear, namely, that any interference with freedom of association must
be prescribed by law, clear, precise, unambiguous, accessible, with
foreseeable consequences, legitimate and justified. One would hope that,
for such interference to be upheld, there would need to be evidence
conforming to those principles.9
Alec Samuels IP
Barrister
9 The author is not, and never has been, a Freemason and has never had any connection with Freemasonry.
124


Legal comment:  Freemasonry.  Is Freemasonry lawful in England?  Can the Government or other public body or employer prevent or penalise membership of Freemasonry?

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Legal comment: Freemasonry. Is Freemasonry lawful in England? Can the Government or other public body or employer prevent or penalise membership of Freemasonry?

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