Month: November 2013

Jurisdiction

From juris, meaning ‘law’, and diction, meaning ‘to talk’. A lawyer’s jurisdiction is the places where, and the people with whom, s/he can talk about the law. Getting jurisdiction wrong can have very severe consequences. Telling your wife’s (or husband’s) friend about your client’s secret identity is an example of this; it results in an annoyed client (compensation), an annoyed employer (disciplinary action), and probably an annoyed wife (or husband) (doesn’t even bear thinking about).

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Double Jeopardy

Scholars of medieval history know that the game of Chess existed in multiple forms during earlier centuries, such as four-hand chess, courier chess, and circular chess (this last is still played regularly). It is less well known that the game Jeopardy! has another form, only ever played by lawyers. This is known as Double Jeopardy, and the single difference is that if a player (known as a prosecutor) tries to win, and loses, he is allowed to try again. Given the problems inherent in this situation (where a game might never be properly finished, as the loser will always try again), the game has fallen into disrepute. In fact, a “Rule Against Double Jeopardy” has been introduced to prevent it being played in official venues.

Are there any moral absolutes?

Are there any moral absolutes? That is the question. Some philosophers would say, unequivocally, ‘yes’. If only on the grounds that ‘the only rule is that there are no rules’ is a paradox. Others would say ‘no’, that morality is entirely dependent on culture. Naturally, there are some questions that get answered the same way in pretty much every culture, “Is it OK to kill someone just because you feel like it?” being one example, but that does not necessarily mean that ‘killing is wrong’ is a moral absolute.

Ethicists have been debating the absolute/relative morality argument for centuries. Millennia, in fact, and are no nearer to finding an answer (although they have come up with a lot of new questions).

Moral absolutism vs moral relativism has come up in the news recently, but in a slightly less elevated manner. It is one of the perils of multiculturalism: life is simple enough when they have a different moral code as long as they stay over there. It’s when they arrive over here that the problems start, because when you have two different moral codes operating in the same community, you have a choice: accept moral relativism and say “Well, it’s their culture, it’s wrong to interfere”, or take a moral absolutist stance and say “Some things are just wrong, no matter how much of a cultural tradition they are.”

Currently, we’ve got the Roma, whose arrival in an area seems to be the signal for reactions varying between despair, resignation, resentment, outrage and panic. In some places, the usual residents simply wait for them to move on (however inconvenient their presence might be) and then clear up the mess. In other places, they are forcibly moved on. But nobody seems to want them because they have the reputation for being messy, dirty, and criminal. How much is true – and how much of the truth is cultural choice and how much is practical necessity – I don’t know. It’s pretty clear, though, that the Roma get a worse press than they deserve, and that affects the way they get treated. How many other ethnic groups would have their children taken away simply because they don’t seem to look like their parents?

Then, we’ve got comments about ‘endemic corruption‘ in some communities, the Pakistani community being named by Dominic Grieve, who then had to apologise. However, one does think that although he could have phrased his statement better, he might actually have a point. But can it legitimately be called ‘corruption’ when giving priority to family and friends is an accepted cultural tradition? The problem is not so much what is done, but the conflict between them and us. If you come from a culture where extended families are strong units, and it’s part of every member’s duty to look after other family members, then of course you are going to bring that tradition with you when you immigrate to a new country, just as you bring traditions in dress and food. One might well ask, if a job needs doing, and a family member will do it well, how is it corrupt to give the job to the family member? After all, someone has to do it, and if the job is done well, does it matter who does it?

Here, of course, is the conflict in ideologies. On one side, the ideal that it is of the first importance to help your family and friends; if you have the good fortune to be in a position of influence, you should do what you can to use your influence in favour of the people you have a duty to support. If you do not share your good fortune, then you are uncaring and selfish.

On the other side, you have the entirely opposite view that nobody should be given an unfair advantage simply because of their family; each individual should have the opportunity to advance through his or her own efforts, without being unduly disadvantaged by not possessing the right ‘connections’. If you use your connections to help family or friends, then you are corrupt.

I think Dominic Grieve, by immediately jumping to the conclusion of ‘corruption’ spoiled an excellent point: culture means more than what you eat or how you dress. It goes deeper than that, and true integration means that both sides need to understand what the other is thinking. How can you fit in unless you know what you are supposed to fit into? And it’s totally unhelpful all round to label a cultural difference as criminal without some serious thought.

And so we are back to moral absolutes. Are there any? Are there any cultural practices which we can, without a doubt, state are criminal and/or morally repugnant and should be stamped out?

Female Genital Mutilation springs to mind. It’s illegal in the UK, but there have been no prosecutions. There have been accusations that this is due to ‘cultural sensitivities‘ – a reluctance to criticise something that is an important rite of passage in some cultures, regardless of the harm it does to the girls and women who undergo it.

But it is not just with regard to immigration that we need to think about moral absolutes. Here in the UK, we have our own home grown differences of opinion on moral issues. Tomorrow, the 27th November 2013, the Supreme Court will hand down its judgement in the case of Bull and another (Appellants) v Hall and another (Respondents). It concerns a case where Mr and Mrs Bull, who run a bed-and-breakfast business, refused accommodation to Mr Hall and his civil partner. This was, state Mr and Mrs Bull, because their Christian beliefs include the tenet that heterosexual marriage is the only permissible relationship for couples to enjoy full sexual relations. Discrimination in the provision of services on the grounds of sexual orientation is illegal (Equality Act (Sexual Orientation) Regulations 2007) – but Mr and Mrs Bull believe that they should be allowed to manifest their religion (Human Rights Act 1998, Article 9) by refusing accommodation to people whose lifestyle they belief is sinful.

So what we have here is no more nor less than two competing ideologies: the belief that homosexual relationships are not sinful, and the belief that they are. Like FGM, there is a specific UK statute involved: Parliament has decided that FGM is not acceptable in the UK and doing it to a girl or woman is therefore a criminal offence; but homosexuality is recognised as a natural variant of human sexuality, and therefore homosexual persons should not be discriminated against. Likewise, on the one hand we have people who are, apparently, still subjecting their daughters to FGM, and on the other, we have people who want to deny services to homosexual people based on their sexuality.

Of course, you could say that this is hardly the same situation: on the one hand, we have girls subjected to an invasive, harmful surgical procedure that can have long-term adverse effects on their health (up to and including death), and on the other we have two men who need to find alternative B&B accommodation.

But it’s not that simple. When we discriminate against someone because of their personal characteristics – when we deny someone access to a service simply because of who they are – we are denying their equality, and denying their right to exist the way they are. You may not be able to see the blood, but mentally, emotionally, and spiritually, that cuts deep. On what grounds can we justify doing that to someone? If we believe that a person deserves equal treatment, then surely we cannot limit that equality by saying “You only get equal treatment as long as people want to treat you equally.”

The Bull v Hall case, therefore, will decide an important point: does state morality (as expressed in the Equality Act) trump personal morality?

And if it doesn’t – if people’s personal beliefs are allowed to override the equal status mandated for others in statute – what does this mean for other conflicts? Anyone seeking to defend FGM is likely to fail under the definitions of belief set out in Grainger v Nicholason, but what about other conflicts? Al-Madinah school has been criticised for allegedly insisting that non-Muslim female staff members wear headscarves, preventing staff wearing symbols of other faiths, and making girls sit at the back of the class (which the school denies). All of which have possible equality and/or freedom to manifest religion (after Eweida) implications.

We cannot carry on, as a multicultural society, ducking the question of morality. There are simply too many competing moral codes all trying to coexist on one quite small island. I think the time is coming – possibly even tomorrow – when a statement will have to be made to the effect that the moral code as set out in law is non-negotiable. Nobody can get out of it, or around it, by arguing that they have a different culture with a different moral code. Nobody can say “That law is against my religion so I won’t obey it.”

The citizens of the UK, of whatever colour, religion, belief system, sexuality or gender, deserve to know that their rights are protected wherever they go, whoever they are, and whoever they are with. We cannot have a situation where, as in George Orwell’s Animal Farm “All animals are equal, but some are more equal than others.”

Women: only as equal as we say you are…

In the news this week is the Church of England’s vote on women bishops, pretty overwhelmingly in favour. However, a big part of the change from last year’s embarrassing vote against was the provisions for those who want no part of women in the episcopate, and how their views will be accommodated.

Now, here is where I hit a problem. Now, I admit that, as a happy little Humanist, my understanding of theology may not be of the best. But, in my simple little mind, I always thought that when it came to religion, it was God’s views that counted.

The way I see it is as follows:
1. Religion is about the Will of God. The rules in any particular religion are their interpretation of the Will of God. Follow the rules, you go to heaven (or equivalent). Disobey and you go to hell (insert appropriate alternate post-mortal destination).
2. God either wants women bishops, or he does not. The two points of view are mutually exclusive.
3. It is therefore the Church’s task to figure out what the Will of God is, and do that.

So, if we have some dioceses, or parishes, refusing the ministry of women bishops, and some accepting it, then by definition, we have some Church of England people who are not obeying the Will of God. In fact, they are setting themselves directly against the Will of God.

OK, the excuse for this is that these people (whichever side is right) are following their own consciences.

However, I was always under the impression that religion was about what God thinks, not what you think…

So then, if we accept that a particular parish, or diocese, can refuse the ministry of a woman, we have a situation where that group of people is saying, effectively, that they think that the Synod is wrong and they are right, about what the Will of God actually is.

So, one of two situations must exist:
1. The Synod in fact has no jurisdiction in the matter of interpreting the Will of God, and such interpretation is up to each individual parishioner. In this case, what is the point of having a Church? If each person has a direct, personal relationship with God, and nobody – be he (or she) never so well-versed in theology – can gainsay the individual’s interpretation of the Will of God, then the Church becomes merely a sort of social club, with singing.
2. The Synod (full of archbishops and that sort of people) actually does have a head start in interpreting the Will of God. In that case, anyone who goes against the Synod’s decision is going against the Will of God as interpreted by the Church of England, and logically, those people ought to either rethink their position (because, as Christians, they are supposed to obey the Will of God, not their own personal prejudices) or find a different religious organisation that is more in tune with their view of the Will of God.

Logically, you cannot have a situation where people who profess to be interpreting and obeying the Will of God allow two contradictory points of view in their organisation, because one of those points of view must be in direct opposition to the Will of God.

Alternatively, one might explain this by saying that this is nothing to do with the Will of God, and everything to do with the personal prejudices of human beings. There is simply no-one with the moral courage to say either “This is the Will of God; take it or leave” or “This is a 21st century church and we are having no more sex discrimination.”

So what we have, apparently, is a situation where a woman can be consecrated as a bishop – but a proportion of the congregation has carte blanche to deny her authority and, indeed, the fact that she is a bishop at all. Simply because she is female.

And if the Church of England allows its adherents to deny the status of one of its bishops, then clearly that ‘bishop’ has no real status at all. What someone can take away from you, after all, is not something that is yours. It is something that you are allowed to hold only so long as others let you.

So although I applaud the decision (half a loaf being better than no bread, and all that), I do not believe that this represents equality. It is not equal if a woman’s status as a bishop can be denied, but not a man’s.

And, in related news, Germany is apparently poised to introduce legislation requiring German companies to give 30% of non-executive board seats to women, from 2016. If these seats cannot be filled by women, then they must remain empty.

Again, this looks like a step forward. However, personally I think it’s a step backwards: “Oh, so you’re on the board. Well, don’t think we have to pay attention to you; you’re only here because we had to have a female, not because you’re qualified. So be a good girl and keep quiet while the men get the work done.”

The problem with quotas is that the people who are given the job can never be quite sure whether they got the job on merit, or because the company had to take what they could find to fill the post. That could have a disastrous effect on the effectiveness of women board members: it is all too easy to ignore someone who is suspected of being a political, rather than a merit, choice. And what of the women themselves? Myself, I would not like to think that I had gained my role because of my gender rather than my abilities. And with a quota in place, no woman will ever be able to be sure that she really deserves her position.

As far as I know, there has been no serious research on why many executive boards are still dominated by men. And without that research, we don’t know the reasons why, and it is impossible to come up with the correct solution to the problem – if it even is a problem. Because all we know is that the numbers aren’t even: we don’t know for sure whether that’s because women are being kept out, or because they simply don’t want to come in.

This brute force approach of mandating a quota that will compel companies to scrabble around trying to find enough women to fill the ‘female seats’ is not true equality. It is saying: “We don’t think you can make it on your own; you won’t succeed unless we make it nice and easy, so we’ll keep out the male candidates so you don’t have any competition.”

Equality is when you make sure there are no barriers to people making the choices they want, and achieving their goals through their own efforts. It is not about a fake equality where you give someone the appearance, but not the reality. That is an expression of the profoundest disrespect, because it denies people the chance to succeed on their own.

Consent – more complicated than it looks

This is another weird experience induced by being a healthcare professional and a law student at the same time (see, I can multitask). You get the same word, but the different professions mean something significantly different by it.

You’d think it would be easy, wouldn’t you? You consent, or you don’t. “Do you want a coffee?” “Yes, of course I want a coffee. What kind of question is that to ask? Give it me now!”

This came up in connection with the Sexual Offences Act 2003 which we’ve been studying in Criminal Law. It also came up on the front page of the Sunday Timeson 17th November, with Professor John Ashton (public health director) stating that the age of consent for sex should be reviewed, with a view to reducing it to 15 instead of 16. In the same article, a barrister specialising in reproductive rights (Barbara Hewson) is quoted as saying that the age of consent should be lowered to 13.

Now, Ms Hewson has received a lot of adverse publicity (unless one subscribes to the view that all publicity is good publicity, of course). She was the barrister who defended the barrister who stated that the child victim of a paedophile was ‘predatory’, and she has questioned whether the Jimmy Savile case may not have resulted in a moral panic and witch-hunt rather than a sober investigation.

And there was uproar. And outrage.

But let’s just have a look at the facts.

The age of criminal responsibility in this country (the UK) is 10 years. So at the age of 10, you can be convicted of murder. You cannot murder someone by accident: if you kill someone by accident, even by gross negligence, it is manslaughter. To murder someone, you have to form the specific intent either to kill, or to cause grievous bodily harm (and then actually kill them, of course. If you just fantasise about it, it doesn’t count).

And we in the UK believe that a 10 year old can understand concepts of life and death and responsibility enough to form an intent to kill.

Yet we don’t think that that same 10-year-old can consent to sex.

It gets worse. It’s not just actual sexual intercourse; it’s all sexual activity. In the UK, two fifteen-year-olds having a consensual snogging session are both committing a criminal offence under Section 13 of the Sexual Offences Act 2003. (Unless they both think the other is over 16 – and how likely is that?) If it’s two twelve-year-olds kissing, then they’re both committing a Section 13 offence regardless, because liability is strict in the case of children under the age of 13.

And now we get into the medical bit, which muddies the waters even further. Under the Family Law Reform Act 1969 the age of consent to medical treatment was set at 16. However, following the case of Gillick v West Norfolk and Wisbech Area Health Authority the situation got a bit more complicated.

Gillick was about the provision of contraception to girls under the age of 16 without their parents’ knowledge; Mrs Gillick did not want doctors providing contraception to her daughters without her consent. She contended that a) it was a parent’s right to make decisions like that and b) a doctor giving contraception to a girl under the age of 16 would be abetting a criminal offence.

In the event, Mrs Gillick lost. A parent’s right to direct their children’s lives, in the opinion of the court, only went so far as decisions in the child’s best interest. And the prescriber also had the duty to consider the girl’s best interests in the case of contraception. The rules that came from the case regarding the provision of contraception to girls under the age of 16 without parental consent or knowledge were:

  • The patient, although under 16, would understand the advice.
  • The doctor could not persuade the patient to inform her parents or allow the doctor to inform her parents that she was seeking contraception advice.
  • The patient was very likely to begin or to continue having sexual intercourse.
  • The patient’s physical or mental health could suffer unless she received contraceptive advice or treatment.
  • Her best interests required the doctor to give her contraceptive advice, treatment or both without parental consent.
  • These rules have since been extended to cover all medical treatment. So we have the situation where a young person of 15 can be judged competent to form the intent to kill (all children over the age of 10) or to consent to open-heart surgery (if they are judged ‘Gilick Competent’), but not to kiss their boyfriend.

    How’s that for screwed up?

    Back to Barbara Hewson, I think the reason she is vilified is because she is speaking truths that, as a society, we do not wish to acknowledge. Parents don’t like to think that their darling daughter might be doing the horizontal tango. It’s not fashionable to be of the opinion that sexual mores and standards change over time: what was judged permissible (or not) thirty years ago might not be judged the same way today. And can we judge today’s behaviour by yesterday’s standards, or yesterday’s behaviour by today’s standards?

    Barbara Hewson recognises that the ability to make an informed decision does not suddenly land on a person, like bird-droppings, at the age of 16. She also recognises that understanding is global: it’s unlikely that a person can form an intent to kill but not to kiss. So why should we treat killing differently from kissing? The issue is one of understanding and consent.

    The ability to consent develops at different rates in different people; some young people may understand the concepts involved well enough to consent to surgery at 12; others may not. In medicine, we recognise this, and take it into account. Yet the law treats criminal responsibility and sexual behaviour differently – not only as something that gets switched on in everyone on the same date, but the date itself is different depending on what is being consented to.

    In Gillick Lord Bridge (dissenting) was of the opinion that the provision of contraceptives to girls under the age of 16 must be unlawful (regardless of who consents) because sexual intercourse with a girl under the age of of 16 is unlawful. He was of the opinion that girls under the age of 16 should be prevented from having sex – presumably, regardless of what this takes.

    His judicial colleague, Lord Templeman (also dissenting) had a different opinion. He stated that a) it was an offence for a man to have sex with a girl under the age of 16; b) that a girl under 16 could not consent to sex; c) that a girl under 16 could not consent to contraception either, but d) if a girl was determined on having sex, then her doctor and parents together could decide that contraception should be provided.

    The judgements in Gillick provide an interesting range of judicial opinion and reasoning. At bottom, the case is about the conflict between law and reality. In law, a girl under 16 cannot consent to sex; a person who has sex with her is committing the offence of rape. Anyone who facilitates the act (other than the girl herself – a girl under 16 cannot be an accomplice to her own rape in the UK) is an accomplice to rape. So how come it’s OK for a doctor to facilitate sex with a girl under 16 years old by providing contraception?

    Much is made (by the judges in the majority) of the ‘well, if she’s going to have sex anyway…’ point, but this is mere damage limitation. It is, if you like, an explanation, or even a defence, but on pure logic, it shouldn’t make the initial act any less illegal.

    Don’t get me wrong; I think that Gillick was correctly decided in practical terms. However, I think the fact that it ever got to court shows the dangerous dichotomy between the law and the reality. Here we have a situation where a professional person is aware – in fact, is certain – that the crime of rape is going to be committed. And what does he (or she) do? Report it? No. They facilitate it.

    There is another point, rarely – if ever – mentioned. What is the position of the young man, or boy, in this situation? He and his 12-year-old girlfriend are going to have sex; she sensibly goes to her GP and gets contraceptives. They have sex. And then he gets arrested for rape.

    In R v G [2008], Baroness Hale states that the reason for the law being written the way it is – particularly that rape of a child under the age of 13 is a strict liability offence, meaning that it is no defence to state that the child consented, or that the accused believed s/he was over 16 – is not only to protect children from paedophiles, but also to protect them from premature sexual intercourse. This is all very logical and morally praiseworthy, of course. However, it does lose its shine when one considers that at the same time the state criminalises a person (even of the same age) who has sex with a girl under 16, the state also allows the girl’s GP to give her contraceptives to enable her to have sex without the risk of pregnancy (OK, technically a very considerably reduced risk).

    The only reason for this situation is that the courts recognised in Gillick that there are some girls under the age of 16 who are capable of consenting to sexual intercourse, and that those girls should have access to contraception. Because, surely, if the prescriber of contraception believed that the girl was being abused, then his/her reaction would be not to simply provide contraception, but to report the suspicion of abuse?

    Yet the law as laid down in statute does not recognise this at all, and criminalises that girl’s sexual partner.

    Isn’t it time, therefore, that we at least acknowledged the inconsistency?

    We have the Mental Capacity Act 2005 which relates to decisionmaking for those without capacity (e.g. by reason of age, or injury) to make their own decisions or consent to medical treatment. It does not set out hard and fast rules for who can consent and who cannot; it defines what incapacity is, and makes it clear that capacity is assumed unless incapacity is demonstrated. A consequence of this is that a person might have capacity to make one decision (e.g. to get married) but not to make another (e.g. to make a will). It would be interesting to see the provisions of the Mental Capacity Act applied to matters of consent in criminal law. Rather than have the illogical and harmful situation where a girl is judged competent to have sex (by her doctor) but anyone who has sex with her is committing an offence because of her incapacity, it might be interesting to have a situation where a girl (or, of course, boy) under 16 is presumed to be nonconsenting unless unless both consent and capacity to consent – judged under the standards of the Mental Capacity Act – were present.

    I doubt, however, that this would ever happen. However logical it might be to judge criminal responsibility, and capacity to consent, on the characteristics of the person involved, I think that to do so would be politically unacceptable. However willing we are to accept that learning disabled people and elderly people are judged by this standard in decisions about their ability to make far-reaching decisions about themselves and others, I think there would be resistance to applying the same standards to children. Not because it is illogical, but simply because society does not wish to acknowledge that a particular fifteen-year-old might be quite capable of consenting to a sexual relationship.

    Society still wishes – in the law – to preserve the fiction of the ‘innocence of childhood’, which is daily assaulted by sexualised images in the media. And, particularly in the case of girls, society is still wedded, I think, to the idea that a ‘good girl’ is a virgin, but that the real villain of the piece is the cad who deflowers her. And so we will remain in the ridiculous situation where young girls are (rightly) given contraceptives – and thus tacit permission – when they wish to embark on a sexual relationship responsibly, but we criminalise their sexual partners.

    Christmas – bah, humbug

    Number of Christmas cards I will be sending: 0
    Number of Christmas presents I will be buying: 1

    My one Christmas present purchase is a concession to workplace politics rather than any kind of festive feeling. It’s the annual Secret Santa, and in the name of diplomacy, I will purchase a present (£10! It used to be only £5. What is the government doing about this level of inflation, I should like to know? Next stop, Weimar Republic, and don’t come crying to me when you need a wheelbarrow to carry your wages home. Unless you’re a senior banker, naturally, since they already not only utilise a wheelbarrow for this purpose but also employ a man to push it). This present is for someone I don’t know, and whom I had to get someone else to identify for me.

    And for £10, I need to identify what my assigned target most desires within that price range, purchase it, wrap it attractively, and place it in the box provided ides for the purpose.

    What is the point of all this? It depends, I think, on the attitude with which it is approached. With a bit of effort, one could view the Secret Santa enterprise as a tool in intradepartmental bonding: you are assigned one person, and your task is to find out enough about them that you can buy a nice present that they will appreciate. And in return, someone will do the same for you. On opening your present, you get a nice warm feeling that there is at least one person in the entire department who has paid enough attention to you as a person, rather than as a work-unit, to discover that you have a secret passion for…well, whatever it is you have a secret passion for.

    Unfortunately, this isn’t what usually happens. After working yourself up into a fever-pitch of anticipation at the thought that someone in the department actually cares, you open your present to find… Bubble bath. Or chocolate. The standard gifts that mean “I don’t know you, I don’t care about you, so here is a Gift For The Anonymous Female.” Or, potentially worse, the bad-taste present that is neither witty, nor useful, nor attractive.

    And then there’s the problem of Christmas cards. A more pointless (and expensive) waste of money I cannot imagine. If you are going to see someone, you can tell them Happy Christmas; if you’re not going to see them, a Christmas card simply demonstrates that, having written “To Joe” and “Love From Me” on it, you consider your communicative duty complete. You don’t even have to make up your own greeting because it’s printed on the card for you. If you really cared, wouldn’t you ring them and have a chat? Or send a proper letter?

    Of course, one thing cards are good for is a popularity contest. You set them up all around your living room and then invite your friends around so that they can see how many people liked you enough to send you a card, and compare their own total. It’s sort of like Facebook, only with cardboard. There are, however, certain tactics that will give you an edge in the competition: if you send out lots of cards, you might just be able to guilt a few people who wouldn’t normally send cards into sending a return card, just so they don’t seem churlish.

    The problem, I think, is an emphasis on quantity over quality. This might well be appropriate if you’re Josef Stalin, but in personal interactions that don’t include tank warfare, quality should be the way to go. Who cares if you send out three hundred cards every year? When did you last speak to those people? Do you know anything about them beyond their name? Wouldn’t it be better, if you’re going to do the thing, to just concentrate on close friends – but make those friends feel valued?

    It’s so easy to communicate with everybody now that it’s sometimes hard to remember why we do it: because it says I know you and I value you. My life is made richer by knowing you.

    And here is a link to my very favourite Christmas carol. I think it captures the modern Christmas spirit perfectly.