How much control can an employer exert over a worker’s freedom of expression outside of the workplace? This question was addressed by Mr Justice Briggs in the case of Smith (Adrian) v Trafford Housing Trust [2012] EWHC 3221 (Ch), 16 November 2012.
Mr Smith had worked for the local authority and then Trafford Housing Trust for a continuous period of around twenty years, reaching a managerial position. He was on a salary of £35,000. However, he was demoted and had a pay cut of 40% imposed due to comments he made on Facebook. Mr Smith had 201 ‘friends’ on Facebook, of which 45 were colleagues. In his personal information he disclosed that he was a manager at Trafford Housing Trust, that he was a “full-on charismatic Christian” and politically “left of centre.” His Facebook comments, which covered such topics as motor vehicles, sport and food, were accessible by Mr Smith’s ‘friends’ and ‘friends of friends.’
Chris Luff
Law researcher and teaching assistant, now at www.chrisluff.co.uk
Sunday 18 November 2012
Tuesday 17 July 2012
Public and Administrative law - latest cases
@ukpubliclaw
Why a new Twitter feed of caselaw from Bailii? There is already @bailii, which is doing an excellent job, and @caselawupdates. The @bailii feed grabs everything that goes on Bailii, and even adds a short descriptor to the front of the Tweet so you can see at a glance the court. However, it is still quite easy to overlook a case from a particular speciality – 14 new cases so far on the day I'm writing this.
I'm involved in research into the impact and value of judicial review, so it is natural to want a straightforward alert system of new judgments from the Administrative Court. The Admin Court deals with more than civil judicial review, but with a likely output of between 30 and 60 new cases each month the numbers are much more manageable.
Fortunately it is straightforward to obtain these cases on their own because Bailii has multiple different feeds to choose from. @ukpubliclaw only pulls cases from the "new decisions" Admin Court feed on Bailii – see the choices of feeds here, (there's loads).
Appeals are slightly more difficult. Bailii has separate feeds for Civil and Criminal appeals, but most civil appeals are not from the Admin Court. And while a good proportion of Supreme Court cases are on appeal from judicial review decisions, it isn't obvious how to distinguish them from the rss feed.
I am experimenting with a filtered feed from the Court of Appeal, on the basis that most judicial review cases have the phrase "(On the application" included in their title field. In the meantime, I will be updating the Court of Appeal and Supreme Court decisions manually, and be trying to follow a format similar to this one here.
Anyway I hope this feed grows to perform a useful service for students and practitioners alike. I can see it expanding to include tweets linking casenotes for example, or media reports of cases, depending on how much time I have and how people are inspired to engage.
If you have any ideas, feel free to DM the @ukpubliclaw feed, or leave a comment here.
Many thanks to Patrick Torsney, @ilegal, for his help and encouragement. (Patrick administers the @bailii feed.)
@crluff
Why a new Twitter feed of caselaw from Bailii? There is already @bailii, which is doing an excellent job, and @caselawupdates. The @bailii feed grabs everything that goes on Bailii, and even adds a short descriptor to the front of the Tweet so you can see at a glance the court. However, it is still quite easy to overlook a case from a particular speciality – 14 new cases so far on the day I'm writing this.
I'm involved in research into the impact and value of judicial review, so it is natural to want a straightforward alert system of new judgments from the Administrative Court. The Admin Court deals with more than civil judicial review, but with a likely output of between 30 and 60 new cases each month the numbers are much more manageable.
Fortunately it is straightforward to obtain these cases on their own because Bailii has multiple different feeds to choose from. @ukpubliclaw only pulls cases from the "new decisions" Admin Court feed on Bailii – see the choices of feeds here, (there's loads).
Appeals are slightly more difficult. Bailii has separate feeds for Civil and Criminal appeals, but most civil appeals are not from the Admin Court. And while a good proportion of Supreme Court cases are on appeal from judicial review decisions, it isn't obvious how to distinguish them from the rss feed.
I am experimenting with a filtered feed from the Court of Appeal, on the basis that most judicial review cases have the phrase "(On the application" included in their title field. In the meantime, I will be updating the Court of Appeal and Supreme Court decisions manually, and be trying to follow a format similar to this one here.
Anyway I hope this feed grows to perform a useful service for students and practitioners alike. I can see it expanding to include tweets linking casenotes for example, or media reports of cases, depending on how much time I have and how people are inspired to engage.
If you have any ideas, feel free to DM the @ukpubliclaw feed, or leave a comment here.
Many thanks to Patrick Torsney, @ilegal, for his help and encouragement. (Patrick administers the @bailii feed.)
@crluff
Friday 15 June 2012
Before a fair tribunal?
Here's some thoughts on the latest Christian
versus employer case to hit the headlines, Dr Richard Scott before the General
Medical Council.
The general background is that a patient of
Dr Scott's complained that he had been left feeling distressed by the Doctor's
references to religion during the consultation. He made various complaints that
amount to pretty outrageous behaviour if they are true. The allegations are repeated in full in the decision linked to below.
The GMC allowed the patient, who remains
anonymous, to give his evidence by telephone. Dr Scott's representative was
allowed to cross-examine him.
The tribunal found against Dr Scott on most
of the allegations made, and entered a note in his disciplinary record as a
result.
These are my slightly augmented tweeted notes as I read the
GMC's case this morning:
- Reading GMC decision on Dr Richard Scott. The Daily Mail suggests significant procedural unfairness.
- Dr Scott did not endear himself to the tribunal by going on national radio to state his religion had more to offer than that of his patient.
- Nor by his "absence of insight" and "strongly expressed views during this hearing."
- However, "in the Committee's view both witnesses were honest and not trying to deceive."
- My concern is Patient A gave evidence by telephone yet despite finding of credibility, Dr Scott's responses "in conflict with the evidence."
- Suggesting there was 'what Dr Scott said', and 'the objective evidence', when the hearing's purpose was to establish the objective evidence.
- This doesn't sit comfortably with the tribunal finding him a credible witness when there was not 'equality of arms' between the witnesses.
- And the tribunal's findings amount to 'we don't believe you.' Dr Scott clearly didn't help himself, but judicial review seems likely on procedural fairness grounds.
- Re fair tribunals: "axiomatic" in resolving direct conflicts of evidence, demeanour of "critical importance." See R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin) at para 44:
"It is axiomatic that the ability to cross-examine in such circumstances is capable of being a very significant advantage. It enables the accuser to be probed on matters going to credit and his motives to be explored. It is no less axiomatic that in resolving direct conflicts of evidence as to whether misconduct occurred the impression made on the tribunal of fact by the protagonists on either side and by their demeanour when giving oral testimony is often capable of assuming great and sometimes critical importance."The GP himself admitted that if the allegations were true he would be in breach of GMC guidance on discussing matters of faith in a consultation, so there is no argument that he should face some disciplinary penalty based on the findings of the tribunal. But the crux of my concern here is that Dr Scott did not face a fair tribunal in the first place. The argument is the patient's word against the doctor's, and therefore demeanour is of the utmost importance.
It wouldn't surprise me if Dr
Scott was advised to seek judicial review of the GMC with a view to having its decision
quashed and remitted for a fair hearing.
Monday 4 June 2012
On same-sex marriage
A
few weeks ago I was asked to look into the issues surrounding the Government's
same-sex marriage proposals in light of a request to provide some information
on the matter produced by the Christian Institute and to circulate a petition
at our church in support of the Coalition for Marriage. The person who asked me
to do this knows that I am strongly opposed to the underlying philosophy behind
these organisations and so what I produced was not intended to be unbiased.
Their approach is contrasted with that of the Baptist Union of Great Britain,
of which my church is a member.
Here
is an augmented version of the document that I submitted, with some slight
corrections and clarifications. The additional part comes at the end, in the
form of my own opinion on the wider issues. The sections marked
"Comment" are also my own thoughts.
The Government's
consultation
The
proposals website is available at this link, http://www.homeoffice.gov.uk/publications/about-us/consultations/equal-civil-marriage/,
which also links to a pdf version of the full consultation document.
What is the government
NOT proposing?
It
is interesting that before explaining what it is proposing, the consultation
document first clarifies what it is not proposing with respect to religious
marriage ceremonies.
Firstly,
the government only seeks to lift the ban on civil marriage ceremonies for
same-sex couples. No religious organisation could face successful legal
challenge for refusing to perform such a ceremony because it would remain unlawful,
following the proposed legislation, for same-sex couples to marry on religious
premises. (2.10)
In
spite of the fact that men and women have a right to be married in their local
parish church, the Church of England specifically will not face successful
legal challenge for refusing to marry same-sex couples. The new legislation
will not extend the right that opposite-sex couples have to same-sex couples.
(2.11)
Faith
groups will not face successful legal challenge for hate speech or
discrimination for propagating their belief in marriage as between a man and a
woman as a result of this legislation. (2.12)
What is the government
proposing?
When
declaring their marital status to employers, public authorities or other
organisations, people in civil partnerships are effectively also declaring
their sexual orientation. The proposals will lift this anomaly, which is seen
to be unfair. Civil partnerships are contracted simply by signing a register, and
there is no necessity for words to be spoken as per a marriage. This anomaly
would also be closed. (1.10)
Currently
civil partnerships cannot be dissolved for reasons of non-consummation, and
adultery cannot be cited as a reason for irretrievable breakdown and divorce.
The government proposes to extend all the same reasons for dissolution, divorce
and annulment to same-sex marriage. (2.14-2.16)
Civil
partnerships will still be possible, so that same-sex couples have a choice of
ceremony and how they define their relationship subsequently. (2.19). There is
no intention to open up civil partnerships to opposite-sex couples. (2.20).
Current civil partners will be able to convert their civil partnership into a
marriage. (2.22).
It
will remain possible for religious organisations to hold civil partnership
ceremonies on their premises, as long as the ceremony has no religious
components – e.g. no hymns or religious readings. This is and will remain a
voluntary provision for those religious organisations that choose to register.
(2.24-2.25)
The
proposals for same-sex civil marriage will have the effect that a married
person who has changed their gender by way of a Gender Recognition Certificate
will no longer have to end their marriage. (2.27-2.30)
There
is a whole tranche of issues including state benefits, pensions, survivor
benefits, and international recognition of relationships, amongst other
matters, that will require change as a result but do not affect the essence of
the proposal, which is to allow same-sex partners to "marry."
(2.32-2.38)
Annex
A to the consultation lists the following States that already allow same-sex
marriage:
Argentina,
Belgium, Canada, Iceland, Mexico, Netherlands, Norway, Portugal, South Africa,
Spain, Sweden, and some states of the USA. There is a very much longer list of
States that allow same-sex civil partnerships or equivalent.
Without
the need for petitions or other potentially objectionable material, everyone
has the opportunity to respond to the consultation, either via the website or
by post to:
Government
Equalities Office
3rd
Floor Fry
2
Marsham Street
London,
SW1P 4DF
Comment
The
proposals appear to be directed at changing technical differences between civil
partnerships and marriage. On the face of it, there seems little scope for
objection on religious grounds to any of the technical changes, which seem
singularly devoid of any moral implication. The one possible exception, the proposals
to allow dissolution/ divorce on grounds of non-consummation/adultery would
appear a very strange issue for religious organisations to get worked up about,
since they are directed to the ending of the relationship that they find so
offensive. Objections would seem to reduce to antagonism towards the civil
partnership scheme itself, and to the use of the word "marriage" as
having some mystical and timeless value attached to it.
The coalition for
marriage
The
website is here, http://c4m.org.uk/.
Four
"reasons" to oppose the government's proposals are cited under the
headings "Marriage is unique," "No need to redefine,"
"Profound consequences," and "Speak up."
Marriage is unique
"Throughout history and in virtually all human societies marriage has always been the union of a man and a woman. Marriage reflects the complementary natures of men and women. Although death and divorce may prevent it, the evidence shows that children do best with a married mother and a father."
No need to redefine
"Civil partnerships already provide all the legal benefits of marriage so there's no need to redefine marriage. It's not discriminatory to support traditional marriage. Same-sex couples may choose to have a civil partnership but no one has the right to redefine marriage for the rest of us."
Profound consequences
"If marriage is redefined, those who believe in traditional marriage will be sidelined. People's careers could be harmed, couples seeking to adopt or foster could be excluded, and schools would inevitably have to teach the new definition to children. If marriage is redefined once, what is to stop it being redefined to allow polygamy?"
Speak up
"People should not feel pressurised to go along with same-sex marriage just because of political correctness. They should be free to express their views. A public consultation on the proposals to redefine marriage has been launched. Although the Government says it is determined to press ahead regardless, the consultation provides an opportunity for members of the public to say they do not agree with redefining marriage."
The
Coalition is a little coy about who it comprises of. The website says:
"The Coalition for Marriage is an umbrella group of individuals and organisations… The Coalition is backed by politicians, lawyers, academics and religious leaders."
It
neglects to mention by name any particular organisations, although some high
profile signatories to the petition are mentioned on the website, including
former Archbishop of Canterbury Lord Carey, other prominent Bishops, MP's from
both Labour and Conservative benches, and some academics.
At
time of writing, 16 May 2012, it boasts some 516,249 signatures.
Comment
The
objections are open to some criticism. The first amounts to an argument from
tradition and offers no reasoned analysis why change should be opposed. It is
disingenuous because it seeks to introduce evidence regarding children that is
irrelevant to the matter. Women are allowed to get pregnant and raise children
outside of marriage. It is wholly irrelevant to conflate this with the
discussion surrounding civil marriage.
The
second is addressed by the government and amounts to the technical changes the
proposal will introduce. The assertion is therefore factually inaccurate. It
may not be discriminatory to support traditional marriage, but arguably it is discriminatory to oppose
rights for other people that do not affect you. The assertion that no one has
the right to redefine is highly controversial and goes to the root of our
constitution and political process. It effectively seeks to undo the
Reformation.
The
third is pure scare-mongering. The onus is on those objecting to point to
evidence of such harm. There are countries that have recognised same-sex
marriage for 10 years and more, from which ample evidence of harm would be
forthcoming and doubtless trumpeted should it exist.
The
essence of the assertion regarding polygamy is of course true in the literal
sense, since there is "nothing" to stop subsequent redefinition.
Parliament is supreme in this country: that is our constitutional settlement. Parliament,
through its elected representatives, can make or unmake any law it sees fit.
Nevertheless, the driving force of the changes is coming from people with a very
high view of equality, which would seem to be intrinsically at odds with the
idea of polygamy from a gender equality perspective. Furthermore it would still
fall to objectors to adduce evidence of the harm that polygamy would cause.
There are States that allow polygamy and we have plenty of precedent in the
bible of people in polygamous relationships who were nevertheless blessed by
God. The claim therefore seem to rest on its shock-effect rather than an
objection that has been seriously
thought through and reasoned.
The
final paragraph is not an objection but a call to exercise the common law and
Convention right of freedom of speech. It is notable that within the last week
a prominent Christian blogger who supports C4M has been supported by the
National Secular Society in the wake of having been investigated by the
Advertising Standards Authority for supporting C4M on his website. See, http://www.secularism.org.uk/blog/2012/05/advertising-watchdog-threatens-to-martyr-archbishop-cranmer-all-over-again.
Nevertheless,
freedom of speech does not mean that every organisation must allow any free
speech at any time, and a church is perfectly well within its rights to say –
whether of C4M or of my or anyone else's objection to C4M: "not here and
not in our name."
The Christian Institute
There
is no particular CI document on the current same-sex marriage proposals, but
its Spring 2012 newsletter has a piece on it and names CI as a partner
organisation of C4M and recommends its readers sign up.
Similarly
I was unable to find an all-encompassing summary of the issues CI campaigns on,
but its website's main news section is split into categories covering
"Religious liberty," "Marriage and family," "Medical
ethics" and "Vice."
Basis of faith (http://www.christian.org.uk/who-we-are/basis-of-faith/)
We
are committed to the truths of historic, biblical Christianity including:
A. The existence of the one, eternal God, Creator and Lord of the universe, who in the unity of the Father, the Son and the Holy Spirit, both governs all things according to his will and is accomplishing his purposes in the world and in the church.
B. The inspiration of the Holy Scripture in its entirety by God’s Spirit through the human authors, and its revelation of God’s truth to humanity. The Bible is without error not only when it speaks of salvation, its own origins, values, and religious matters, but it is also without error when it speaks of history and the cosmos. Christians must, therefore, submit to its supreme authority, both individually and corporately, in every matter of belief and conduct.
[…]
Comment
I
have highlighted the pertinent parts which reveal "fundamentalist"
theology. If the bible is without error in the way suggested then it would be
illogical and sinful not to seek to impose its teaching universally. This is
foundational to the CI position and if we do not subscribe to this foundational
statement then logically we are not bound by its logical outcome.
What we
believe
(http://www.christian.org.uk/who-we-are/what-we-believe/)
- Governments
exist to restrain evil
- Marriage
is sacred
- Parents
have a God-given authority over their children
- Drug
taking is wrong
- ‘Harm
reduction’ approaches are un-Christian
- Religious
freedom must be preserved
- Life is
sacred from conception
- Christianity
and the state
- Christian
beliefs on transsexualism
- Gambling
is wrong
Documents
are available that explore each of these issues.
Comment
I
highlight only the negative elements of these issues, because it is important
to know the ramifications of what we are being asked to accept.
Under
point 1, the CI supports the notion of corporal punishment. "The
punishment envisaged in the Bible clearly includes physical force." They
take the general view that under a democracy it is the Christian's duty to seek
to enact laws that follow their interpretation of God's morals, and to stand
against 'so called "rights"' (their inverted commas around rights)
that are in their view immoral.
Under
point 2, a traditional defence of marriage is given, antagonism to the divorce
laws, and that sex outside of marriage is wrong. Nothing unremarkable here when
read on its own, but read with point 1 it is clearly a manifesto of enforcement
of "God's" morals on non-believers. Statistics may well show that
children thrive in families consisting of a mother and father who are married,
but it is by no means self-evident
that making divorce less "easy" would make for stronger happier
families.
(Statistically
speaking, more children from married families will thrive, and increasingly so,
as more weak marriages are dissolved – so the argument becomes thoroughly
self-serving over time.)
Under
point 3 the CI defends the right of parents to hit their children and to the
extent that pain is caused. Many Christians will agree with them. However, without
Scriptural precedent it is by no means evident why it should be lawful to
assault children in ways that would be clearly criminal if done to adults.
Advocating such a practice would clearly sit uncomfortably with a Safe to Grow
type policy. (Or perhaps Safe to Grow sits uncomfortably with Scripture?)
Under
point 6 the CI is more concerned with broadcasting rights than religious
liberty that extends to people who believe differently from them. True
religious liberty means allowing space for believers of all or no religion to
take meaningful part in society and of communicating their views, and that
means being free from oppression from other people on the basis of their
beliefs.
Under
point 8, CI affirms the constitutional religious and Christian status of the
UK. It asserts that Scripture "clearly teaches that God’s present judgment
is a reality for nations which defy Jesus Christ." This explains to a
great extent the CI's concern on moral issues, because it fears, and seeks to
instil fear in other people, of God's judgment on the United Kingdom if it propagates
laws that are at odds with CI's interpretation of the bible. "Christians
are to work for the state to adopt Christian values and to implement godly
laws."
Significantly:
"In promoting the Christian faith The Christian Institute seeks to affirm the universal Lordship of Christ and to challenge secular humanism, theological liberalism, universalism and other ideologies."
This
effectively translates and interprets the underlying thrust of the previous
points, that CI's ultimate goal is to use democratic tools to undermine
democracy and install some kind of (benign?) "Christian theocracy"
whereby Christianity is favoured in all areas of public life – as it has been
under Christendom. The CI affirms its commitment to "freedom for, not freedom from religion," which misunderstands the concept of freedom
entirely, whereby freedom from
religion is merely the opposite side of the freedom of religion coin. We must be free from other people's religiously
inspired precepts if we are to enjoy true religious freedom ourselves.
"There must be freedom for minority faiths and philosophies except where these plainly transgress the moral law. To fail to privilege one religion would be for the State positively to endorse either a secular humanistic philosophy (which results in atheism), or a “multifaith philosophy” (which is opposed by faithful people in all religions)."
This
last assertion is the most worrying, because the religion that has the monopoly
on morality effectively circumscribes everybody else's freedom. If you're not
for us, you're against us, or so the saying goes.
These
points go a long way to explaining why the CI is able to make bald assertions,
where non-religious folk and what I will call "thinking believers"
would call for objective evidence. If something is against CI's interpretation
of God's moral law, it is indeed self-evidently wrong and requires no further
support from evidence. We notice the same unsupported assertions from Catholic
Archbishops who have asserted the harm that civil gay marriage will cause to
society.
A
nation under the law according to the CI would, in my humble opinion, be a
scary place to live for anyone of a dissenting nature.
The Baptist Union
The
Basis of the Baptist Union is:
1. That our Lord and Saviour Jesus Christ, God manifest in the flesh, is the sole and absolute authority in all matters pertaining to faith and practice, as revealed in the Holy Scriptures, and that each Church has liberty, under the guidance of the Holy Spirit, to interpret and administer His laws.
[…]
What makes a
Baptist
(http://www.baptist.org.uk/what-is-a-baptist/what-makes-a-baptist.html)
(http://www.baptist.org.uk/what-is-a-baptist/what-makes-a-baptist.html)
The authority of the Bible: The Bible is described as the 'Word of God' because Baptists believe that its writers were inspired by God's Spirit. As such, it has authority to guide both what we believe and how we live our lives.
Religious Freedom: Religious freedom for all has always been a keystone of Baptist understanding. Acceptance of differences of outlook and diversity of practice is encouraged within Baptist churches, as well as in our wider world.
Comment
The
difference is very clear. We follow a living Lord as our supreme authority, not
a dead and dogmatic letter. The 'Word of God' is instead described as a
"guide." By implication it is therefore open to interpretation, but
not on the basis of human logic and reason but through the example of Jesus
Christ as revealed in its pages. This is not circular logic, but a matter of
emphasis, priority and reading the direction of scripture and the development
of God's message in a particular context.
Our
notion of religious freedom is not hedged around with exceptions. This is to be
expected of a denomination born out of dissension and persecution. It is
possible to defend the rights of people who believe differently from us while
maintaining our own integrity.
Baptist Union Faith
& Unity department
Faith
& Unity have not produced anything to my knowledge on civil gay marriage.
However, there was a government consultation on whether or not to allow
religious establishments to administer civil partnerships, and F&U did
respond to that. See link at the bottom of this page, http://www.baptist.org.uk/social-and-political-issues.html.
In
the summary comments we find the following assertions:
As Baptists we have a fundamental commitment to religious freedom. We therefore give a general welcome to the proposals contained in this consultation document for two reasons:
a) The proposals give freedom to faith groups to register civil partnerships on religious premises if they wish to do so. We are aware that certain religious traditions do want to be able to carry out such ceremonies, and we believe they should have the right to do so.
b) The proposals give freedom to faith groups to refuse to register civil partnerships on their premises if they so wish. This freedom to withhold consent without fear of legal action is just as important, and one we believe should be consistently upheld.
In
answer to the question: "Do you agree with our proposals for enabling
faith groups to decide who should be able to register civil partnerships of
their premises?"
"We believe the commitment to religious freedom expressed in the proposals is of fundamental importance. No faith group should be obliged to register civil partnerships on their premises. Further, they must be free to decide who to register.
"Any registration will almost certainly take place within the context of an act of worship, and faith communities will want to be assured that those participating have a commitment to, and understanding of, the significance of such worship. Thus, the freedom to refuse to register must be clearly protected, as it is already for marriages."
Furthermore
in answering whether or not it agrees with the ban on religious elements to a
civil partnership ceremony, the following answer is given:
"Whilst we understand that Section 202 of the Act does not remove the prohibition on an act of worship during registration of a civil partnership, the maintenance of such a rigid ban as is suggested in the proposals appears to us strange and contradictory. The reason for allowing religious premises to be used for registering civil partnerships is to enable a faith commitment to be reflected in the ceremony that takes place. Thus, while it may be appropriate to keep the actual act of registration free from any religious content, the strict lines of delineation suggested appear to us to be at odds with the general intentions behind these proposals.
"We see no reason why the regulations should not show greater flexibility, allowing worship to be the overall context instead of a separate act following after registration."
On
whether religious groups are sufficiently protected from litigation:
"This is a matter of major concern to faith communities, and it is vital that every protection is offered to those faith groups and ministers who do not want to register civil partnerships. There must be no possibility of legal action against someone who refuses to participate in such ceremonies.
"The proposals are very clear on this matter. However, the Impact Assessment Annex 3 does note the small risk of legal action (p78). We would want government to do everything possible to eliminate such risks."
Comment
This
reply to the previous consultation seems to me a good example of the defence of
true religious freedom – persuasively arguing for religious groups to be
allowed to administer civil partnerships while equally strongly arguing that
there must be no compulsion.
There
is no hint of moralising, or of attempting to limit other people's freedoms.
This is a principled response against which it would be difficult for non-faith
groups to object.
Clearly
it does not address the issue of same-sex marriage, but it does seem to
indicate the spirit in which the BU might approach this question.
I
would suggest this is the spirit that we should be seeking to encourage in the
Baptist churches.
[That is where my
submission ended. However, since writing, the Faith & Unity Department has
come out with a short statement about civil gay marriage, in the following
terms:
"We believe that the appropriate place for debate to take place is in the local church and we encourage churches to make their own response to this consultation."
Overall comment (not
included in original submission)
In
my opinion the whole issue of gay marriage is a harmful distraction. What the
government proposes is supremely irrelevant to religious organisations that do
not have designs on power or of inflicting their practices on others.
The
Coalition for Marriage has every right in a democratic country to present its
wares and make its arguments. It is, and should not be, of any concern to us,
unless we take the view that by its antagonism of non-believers it is an
obstacle to the Gospel and should be refuted. In my opinion it should be
ignored and only openly refuted if it becomes an issue, but it has no place in
the church.
The
Christian Institute is a parody of its own name. It has fallen into the same
trap as the Pharisees of Jesus' day, that technical obedience to the law is the
way to appease God, to maintain the status quo (the Christendom settlement) and
to prevent God from smiting the nation. It is in effect giving in to the devil,
by admitting that as we cannot persuade people of the efficacy of the Gospel we
will make them on pain of punishment obey "God's" law anyway.
CI
interests itself in many different issues on which reasonable believers may
differ. However, its dogmatic and autocratic tone and objectives should be kept
out of the church. Under the guise of pseudo-Christian beliefs it peddles
something very different from the Gospel and Christ's invitation to
"follow me."
We
can only ever legislate for the appearance
of Godliness. God himself legislated for righteousness in the Old Covenant and
we know how that turned out. God has offered a new way through Christ of
freedom from the law, because as believers we don't need the law since it is written on our hearts. We offer something
that intrinsically cannot be legislated – neither for nor against.
Nevertheless,
the lure of legalism is strong, and many of the issues the CI presents will be
very attractive. Not least it lends its support to the B&B owners who are subject
to litigation from the gay patrons they refused to rent a double room to. Sadly
some people will wholeheartedly support the notion of legislating for morality,
whether the subject matter affects them personally or not and irrespective of
if there is any objective evidence of harm.
My
fear is that if material like this takes root in the church it will be seen as
sinful, un-Godly and anti-Christian to subsequently remove it. That battle
would be much harder than nipping it in the bud now.
The
antidote that I suggest is to counter with teaching on freedom, of living as
dissenters in a secular world, that showing compassion to people who are
different is a Christ-like thing to do, and to recognise that the decision to
follow Christ is a genuine choice, can
only be a genuine choice, and that to legislate for some notion of
Christian morality, and to support those who are trying, would present a
mammoth obstacle to the exercise of that choice.
The
final point that I will make is that the marriage and divorce laws are all
about regulating relationships and protecting weaker parties – mostly when
things go wrong. So we find spouses and children protected during divorce
proceedings, and much clearer and more equitable rules for splitting property
and resources when these relationships end than with informal partnerships. We
also find that spouses have "rights to know" and be consulted in
severe health matters, and the whole panoply of responsibilities that come with
being next of kin.
Very
few of those issues actually strengthen the institution of marriage in terms of
the vows made to each other, but they do make it a desirable state in a fallen
world where relationships sometimes don't prevail, precisely because the
separation and aftermath have some regulation to them.
But
these are technical issues, and do not speak to the morals of the situation. If
the churches truly wanted to be radical, they would campaign for civil
partnership rights for all, gay or straight, so that anyone could avail
themselves of the legal protections, and re-appropriate marriage as a wholly
religious institution that could be as different across the faiths and
denominations as adherents wished them to be – without affecting the civil
nature of the legal rights and responsibilities that accrue to civil partners.
That
would be a truly dissenting position to take, and would fit with our concepts
of religious freedom and baptism only of confessing believers.
Saturday 28 April 2012
Political advertising and why we don't want it on TV and radio
London Christian Radio
Ltd & Another v Radio Advertising Clearance Centre [2012] EWHC
1043 (Admin)
The
claimants, a registered charity, run the radio station "Premier Christian
Radio" and also publishes three Christian periodicals. It wished to
broadcast a radio advertisement inviting members of the public to contact the
station with their stories of marginalisation of Christians in the workplace.
Listeners were to be told that the advert was "seeking the most accurate
data to inform the public debate" and to "help make it a fairer
society."
In
its submission to the RACC the claimants confirmed the purpose of gathering the
information, amongst others, was "to inform, encourage and to equip
Christians to deal with such matters, to raise it with the Equalities
Commission and the Government and to inform the public and raise
awareness."
The
defendant, the RACC, refused permission to broadcast the advert on the basis
that it infringed the prohibition on political advertising.
The challenge
The
claimants challenged this decision in judicial review, seeking a declaration
that the advert was not political, or in the alternative that the prohibition
was a breach of its right to freedom of expression under Article 10 of the European
Convention. [23]
The law
Section
321(2) of the Communications Act 2003 provides, inter alia, that "an advertisement contravenes the prohibition
on political advertising if it is an advertisement which is directed towards a
political end."
Section
321(3) goes on to explain that "political ends" includes, inter alia, "bringing about changes
of the law … influencing the policies of local, regional or national
governments … influencing public opinion on a matter of public
controversy."
Article 10
The
judge, Mr Justice Silber, dealt first with the Article 10 arguments, because
success for the claimant on this article would inform the interpretation of
section 321. Article 10 states:
- Everyone
has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
- The
exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the
judiciary".
It
was common ground that Article 10 was engaged, and that the broadcast
restriction was a matter prescribed by law. The only point in argument was
whether the restriction was "necessary in a democratic society." [27]
"Necessary" implies the existence of a "pressing social
need," [28] the response to which must be "proportionate to a
legitimate aim." [29]
The
most recent UK case law on section 321 is a House of Lords decision in the case
R (Animal Defenders International) v
Secretary of State for Culture, Media and Sport [2008] UKHL 15. The
learned judge described the similarities
between ADI and the present case as
"striking," [46] and that no reason had been put before him not to
follow it.
ADI
The
legitimate aim of the legislation was "the protection of rights of others,
which included the right to be protected against the potential mischief of
partial political advertisement."
From
para 28 of ADI:
"it is highly desirable that the
playing field of debate should be so far as practicable level. This is achieved
where, in public discussion, differing views are expressed, contradicted,
answered and debated …
"It is not achieved if political
parties can, in proportion to their resources, buy unlimited opportunities to
advertise in the most effective media, so that elections become little more
than an auction. Nor is it achieved if well-endowed interests which are not
political parties are able to use the power of the purse to give enhanced
prominence to views which may be true or false, attractive to progressive minds
or unattractive, beneficial or injurious …
"The rights of others which a
restriction on the exercise of the right to free expression may properly be
designed to protect must, in my judgment, include a right to be protected
against the potential mischief of partial political advertising."
The
pressing social need was that "the broadcast media is more pervasive and
potent than any other form of media … and no fair and workable compromise
solution could be found which would address the problem of partial political
advertising." [39]
Other
relevant factors in ADI were that
parliament had recently addressed the matter and not come up with a workable alternative
itself, [40] and the court should therefore give "great weight" to
the opinion of parliament. Furthermore other options for advertising through
newspapers, magazines, direct mail shots and billboards were available. [41]
It
is notable that the decision in ADI
was unanimous. [42] However, it is under challenge and would imminently be
heard in the Grand Chamber of the European Court of Human Rights. Nevertheless,
in the meantime the High Court is bound by the decision of the House of Lords
in ADI. [29] The Article 10 argument
therefore failed.
Was the advertisement
political?
The
claimant argued firstly that the court should consider the strict wording of the
advert itself, and secondly that the motive or objective of the advertiser was
irrelevant. [55] The advertisement was merely a "statement of fact"
with the use to which any information gleaned stated in "the blandest
terms." [56]
The
defendant argued that the advertisement fell "fair and square" within
the prohibition, and that the words "directed towards" in section 321
include the intention of the advertiser. In response the claimants
counter-argued that this amounted to re-writing the legislation to prohibit
"an advertisement the motive of which is directed towards a
political end." [57]
The
learned judge dismissed the advertiser's motive as irrelevant for three
reasons: [58]
(i)
the purpose of the prohibition is to protect the public "irrespective of
the views or motives of the advertiser."
(ii)
otherwise if an advertiser could demonstrate he lacked the prohibited intent,
an advertisement might have to be cleared for broadcast that otherwise would be
refused permission.
(iii)
the legislation is silent on the matter of advertiser's intent.
As
it happens, the judge was satisfied in any event that the advertisement, by
virtue of the words, "to inform the public debate" and "to help
make a fairer society," was indeed directed to making changes to society.
The application for judicial review would therefore be dismissed.
Comment
As
explored elsewhere in the judgment, the European Court's view on political
advertising is in a state of flux. ADI
was due to be heard in the Grand Chamber in March 2012 and the outcome is
awaited.
One
notable characteristic of the European Court is that it has tended to set its
face against blanket bans on matters judged on the test of proportionality. For
example, the blanket ban on prisoners voting (Hirst no 2 v UK [2005] ECHR 681)
was considered a disproportionate measure.
However,
recent case law suggests that the European Court is more amenable to following
UK jurisprudence when it has been fully considered in the House of
Lords/Supreme Court. Additionally, the prohibition on political broadcast
advertising was given recent and due consideration in parliament while debating
the Communications Act, whereas the lack of such parliamentary consideration
was criticised in the Hirst decision.
There
is therefore every reason for the European Court to uphold the UK position in ADI, whether as a matter of reasoned
principle or by way of the 'margin of appreciation.'
The
ban on political broadcast advertising goes against the grain of freedom of
speech, and against the normal presumption that open and free argument of
issues will tend towards identifying the best outcomes.
Nevertheless,
it is a necessary evil, for the simple reason that it is so much more amenable to
abuse. As the House of Lords ruled in ADI,
the broadcast media is much more pervasive, and might I add persuasive,
(particularly in visual format), that notions of "right" and
"truth", at least in a received sense, will indeed be available to
the highest bidder.
Slippery
slope arguments aren't generally the most attractive; it would be much better
to have a set of principled but permissive rules rather than a blanket ban, and
the facts of this case appear innocuous enough. Nevertheless, the dangers in this
area are manifest and the consequences serious – I cite merely the current and
perennial arguments over political party funding.
Neither
parliament nor the courts have been able to come up with a better solution than
to treat everyone the same - which isn't so unprincipled a solution after all.
It would, of course, be very different if other forms of media were not
available.
Thursday 26 April 2012
Shot with their own gun
So
teachers in Catholic secondary schools across England have allegedly been urged to encourage their pupils to sign a petition against civil gay marriage. Not
unexpectedly, secular, humanist and gay groups are outraged. The Catholic Education Service (CES) confirms that it circulated the recent Archbishops' letter on marriage to Catholic schools. Its does not deny having encouraged pupils to sign the
petition, but its brief press release clarifies that the petition is not open to
those under 16 years of age and that it will make schools aware of this.
It
has been suggested that this action breaches the schools' duties under the
Equalities Act 2010 not to discriminate against homosexual children, and that
may very well be so. However, in my opinion the clearer and more powerful
argument is found in ss406 and 407 of the Education Act, which provide as
follows:
"406. The local education authority,
governing body and head teachers shall forbid … the promotion of partisan
political views in the teaching of any subject in the school.
407. The local education authority,
governing body and head teacher shall take such steps as are reasonably
practicable to secure that where political issues are brought to the attention
of pupils while they are
(a) in attendance at a maintained school,
or
(b) taking part in extra-curricular
activities which are provided or organised for registered pupils at the school by or
on behalf of the school
they are offered a balanced presentation
of opposing views."
A
few years ago, the Department for Education provided all secondary schools in
England with a copy of Al Gore's climate change movie, "An Inconvenient
Truth." (AIT) A special webpage was also provided with guidance on how to
present the film and suggestions for discussion afterwards.
Despite
enjoying overwhelming consensus in the scientific world, human-induced climate change is still controversial, with some scientists dissenting from the
mainstream view accepted by the IPCC. This is the backdrop to the film's promotion
in schools being challenged in judicial review – the case of Stuart Dimmock v Secretary of State for
Education and Skills [2007] EWHC 2288 (Admin).
While
the court upheld the decision to supply schools with the movie, the judge, Mr
Justice Burton, was critical of the Secretary of State in two ways. Firstly, in
a number of instances in the film Mr Gore had presented evidence that went
beyond the scientific consensus. The guidance was altered by the Secretary of
State during the course of the litigation, such that teachers were properly briefed
on these instances and advised how to present them in a balanced way to pupils.
That part of Dimmock does not concern
the CES matter as far as I am aware.
The
second concern in Dimmock was the fact
that the film went beyond simple documentary. Its wider purpose was to persuade
viewers of the need to act on the information, personally, corporately and
politically.
What,
then, is deemed to be political? The
learned judge drew on the definition of political activity from charitable
trusts law [4]. A bona fide charitable trust cannot have objectives that are political,
defined in McGovern v Attorney General
[1982] Ch 321 @340 as purposes:
- to procure changes in the laws of this country; or
- to procure a reversal of government policy.
The
raising of a petition against civil gay marriage falls fair and square into the
second category, as it is government policy to introduce a Bill. While it is true that Government is
consulting, the consultation is not on the "if" question but on the
"how" question of implementation.
However,
the petition also logically falls within the first category too. Campaigning
for a law change and campaigning against a law change are two sides of the same
coin. It would be both illogical and hopelessly confusing to try to distinguish
the two activities, inevitably devolving to a chicken and egg situation.
So
we can assume the CES issue is political. What then defines partisan? Here the learned judge in Dimmock was persuaded by counsel for the
claimant's argument that partisanship comprises the following characteristics
[11]:
- A superficial treatment of the subject matter typified by portraying factual or philosophical premises as being self-evident or trite with insufficient explanation or justification and without any indication that they may be the subject of legitimate controversy; the misleading use of scientific data; misrepresentations and half-truths; and one-sidedness.
- The deployment of material in such a way as to prevent pupils meaningfully testing the veracity of the material and forming an independent understanding as to how reliable it is.
- The exaltation of protagonists and their motives coupled with the demonisation of opponents and their motives.
- The derivation of a moral expedient from assumed consequences requiring the viewer to adopt a particular view and course of action in order to do "right" as opposed to "wrong."
It
was accepted in Dimmock that
education would be "bland," and deny pupils the opportunity to engage
with arguments with which they might vehemently disagree, if they were never exposed to partisan political issues. "The statute cannot possibly mean
that s406 is breached whenever a partisan political film is shown to pupils in
school time," as the learned judge said.
So
the presentation of partisan political material is not per se unlawful,
although it should clearly put the "local education authority, governing body
and head teachers" on notice of its implications. It is the promotion of such material that crystallises
the unlawfulness of the action. "What is forbidden by the statute is, as
the side heading makes clear, 'political indoctrination'." Presentation of
itself, then, is not "irremediably a promotion of those partisan political
views." [12]
How,
then, can such a presentation be rescued? The answer lies in s407, and the need
for balance. Here there is some wriggle-room, since the balance needs only pass
the test of "reasonably practicable." In the Dimmock case, where the overwhelming scientific consensus was in
support of the main thrust of AIT, this was met by simply pointing out that
some scientists dissent from the mainstream view. Balance in that context did
not mean "equal air-time," [14] or that the two views must be
presented as equally valid – in fact a balanced presentation would tend to
demonstrate where arguments were weak. [15] The essence of the requirement is
the need to present the matter in a "fair and dispassionate" manner.
[16]
In
the CES situation then, given that the Archbishop's letter
asserts that governments do not have the authority to redefine marriage, it
would be extremely surprising if an alternative position was expressed
alongside, let alone one presented in such a way as to allow weaknesses to be exposed.
The
presentation, then, appears to fall foul of s406 and is unlikely to have been
rescued by the presentation of a balancing argument according to s407.
Nevertheless,
as the CES points out in its press release, relgious
organisations do have an exemption from certain equalities duties and are allowed
to teach their doctrines on matters like sexuality that would be unlawful for
normal state schools. It is conceivable, therefore, that its teaching on the
Catholic view of marriage is permissible, and the presentation of the
Archbishops' letter without other viewpoints could be rescued from unlawfulness
on this basis. I say conceivable, because I think there is a strong argument
for saying that the letter itself bridges the gap between religious doctrine
and political activity.
Certainly
it does set out the broad thrust of the Catholic theology of marriage. While
this may be unpalatable to many, it is lawful to teach this in Catholic
schools. However, the controversy in question here is not a religious one. As
has been pointed out by the government, churches will not be affected by this
potential change in the definition of marriage, which will provide for civil
gay marriage only. Not only that, but churches will be expressly forbidden from
carrying out such ceremonies. And yet the Archbishops feel it is incumbent on individual Catholics, as Catholics, to oppose the policy.
However,
the real clincher here is the issue surrounding the petition, which cannot be
rescued in the same way as the teaching of religious doctrine. It is unashamedly a political act
and clearly falls foul of the fourth Dimmock
criteria for partisanship: "The derivation of a moral expedient from
assumed consequences requiring the viewer to adopt a particular view and course
of action in order to do 'right' as opposed to 'wrong.'"
This
would be unlawful to promote in any school, and it would be unlawful for the
same reasons no matter whether the petition was expressed in favour of civil
gay marriage or against it.
It
is quite conceivable that headteachers in individual schools be challenged in
judicial review for their decision to make pupils aware of this material and petition. The British Humanist Association has said it will support any child or parent who wishes to make such a challenge. It would be poetic justice indeed if litigation resulted in a mandatory order
obliging such schools to make their children aware of the alternative arguments
– maybe even the existence of other petitions. Perhaps a justified exception to
the old adage that "two wrongs don't make a right."
As
the title says: shot with their own gun.
Postscript:
Just to confirm, although these are church-run schools we are considering here, they are paid for out of general taxation. See Department for Education.
Update 29/04/12:
Just been reminded of a post on UK Human Rights blog about the Equalities Act issues of this situation, which I don't go into above.
Update 29/04/12:
Just been reminded of a post on UK Human Rights blog about the Equalities Act issues of this situation, which I don't go into above.
Saturday 7 April 2012
Eyes closed, hands together
NSS & Bone v Bideford Town Council
[2012] EWHC 175 (Admin)
Surprising case, not so much in the result but in the reasoning. Mr Bone, an ex-councillor, objected to prayers at the start of council meetings. They were voluntary but on the official agenda, with the practical consequence that non-Christians had the choice to either present themselves after prayers or sit through them and do their best to ignore them.
The legal point
The claimants argued the case on several grounds: ultra vires the Local Government Act 1972, discrimination under the Equality Act 2006, and breach of Article 9 and 14 of the European Convention on Human Rights.
At first glance one might assume the human rights argument would be the obvious one to succeed, as it is a freedom of religion matter. However, that argument would suffer from the fact there are two stages to prove - first of all to prove that Article 9 and/or 14 is engaged, and then to consider the countervailing arguments in Article 9(2) because freedom of thought, conscience and religion is not an absolute right. The judge doesn't spend a lot of time analysing this because he decided the case on the ultra vires point. However it reads to me as if he didn't accept that Article 9 was engaged, which means the argument failed at the first step.
There are two potential stages to arguing the discrimination point. Both direct and indirect discrimination on the basis of religion are unlawful, but the claimants only argued for indirect discrimination per s45 Equality Act. In order to make good this claim, Mr Bone would have to demonstrate that he was placed at disadvantage compared with his believing colleagues. The judge did not accept that his choice between absenting himself, for which there was no practical penalty as absences were not recorded until after prayers, or his feelings of embarrassment at their religious practice, was a disadvantage amounting to discrimination. [68]
And so the case turned on whether the council had lawful power to engage in prayer as an official part of its meeting. Section 111 of the Local Government Act provides as follows:
Herein the judge found a contradiction. The meeting was one to which elected councillors are summoned to attend. Within that context, a practice that fell within the threefold definition could not then be voluntary. [25]
The religious argument
This is short. The judge identified a contradiction laying at the heart of the council's reasoning but there is another. The saying of prayers was kept a formal part of business as an agenda item. Those not wishing to take part were granted the option of not attending, with no formal consequence if they exercised this privilege. This option was granted because those wishing to pray recognised that it is wrong to force religious practice on another person - it is voluntary.
Why could the Christians not voluntarily pray before the formal part of the meeting started and remove the prayer item from the agenda, attendance early to the meeting being self-evidently voluntary? Such a small gesture to entirely avoid this unseemly litigation.
Addendum
Obviously since then matters have moved on as the Local Government Minister, Eric Pickles, signed an order giving wide sweeping powers to local council and has promised to reiterate this in the new Localism Act. Should there be a future case, it would be interesting to see if the judge's obiter remarks in NSS & Bone [30, quoted above] would be cited as authority to quash them again. Even Bideford Town Council seems unsure whether the new power goes far enough.
[2012] EWHC 175 (Admin)
Surprising case, not so much in the result but in the reasoning. Mr Bone, an ex-councillor, objected to prayers at the start of council meetings. They were voluntary but on the official agenda, with the practical consequence that non-Christians had the choice to either present themselves after prayers or sit through them and do their best to ignore them.
The legal point
The claimants argued the case on several grounds: ultra vires the Local Government Act 1972, discrimination under the Equality Act 2006, and breach of Article 9 and 14 of the European Convention on Human Rights.
At first glance one might assume the human rights argument would be the obvious one to succeed, as it is a freedom of religion matter. However, that argument would suffer from the fact there are two stages to prove - first of all to prove that Article 9 and/or 14 is engaged, and then to consider the countervailing arguments in Article 9(2) because freedom of thought, conscience and religion is not an absolute right. The judge doesn't spend a lot of time analysing this because he decided the case on the ultra vires point. However it reads to me as if he didn't accept that Article 9 was engaged, which means the argument failed at the first step.
There are two potential stages to arguing the discrimination point. Both direct and indirect discrimination on the basis of religion are unlawful, but the claimants only argued for indirect discrimination per s45 Equality Act. In order to make good this claim, Mr Bone would have to demonstrate that he was placed at disadvantage compared with his believing colleagues. The judge did not accept that his choice between absenting himself, for which there was no practical penalty as absences were not recorded until after prayers, or his feelings of embarrassment at their religious practice, was a disadvantage amounting to discrimination. [68]
And so the case turned on whether the council had lawful power to engage in prayer as an official part of its meeting. Section 111 of the Local Government Act provides as follows:
Subsidiary powers of local authorities.So potentially a three stage test: do the prayers facilitate something, are they conducive to something or are they incidental to something?
(1) Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing ... which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.
Herein the judge found a contradiction. The meeting was one to which elected councillors are summoned to attend. Within that context, a practice that fell within the threefold definition could not then be voluntary. [25]
"I do not see that it can be calculated to facilitate, or be conducive to or incidental to formal public Council deliberations as a whole, for the majority to include as part of their formal deliberations a ceremony from which some absent themselves or feel themselves to be excluded, perhaps under protest or in resentment." [27]This was, I would suggest, the ratio decidendi of the case, however the judge went a little further:
"As a general point, although I deal separately with the question of discrimination and human rights, I do not think that the 1972 Act, dealing with the organisation, management and decision-making of local Councils, should be interpreted as permitting the religious views of one group of Councillors, however sincere or large in number, to exclude or, even to a modest extent, to impose burdens on or even to mark out those who do not share their views and do not wish to participate in their expression of them. They are all equally elected Councillors." [30]He also reiterated the words of Lord Justice Laws in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880:
"The precepts of any one religion, and belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of another. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law, but the State, if its people are to be free, has the burdensome duty of thinking for itself.Not that it should make any difference, but Lord Justice Laws is himself a "devout Christian."
So it is that the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection for such a belief's content in the name only of its religious credentials. Both principles are necessary conditions for a free and rational regime." [22]
The religious argument
This is short. The judge identified a contradiction laying at the heart of the council's reasoning but there is another. The saying of prayers was kept a formal part of business as an agenda item. Those not wishing to take part were granted the option of not attending, with no formal consequence if they exercised this privilege. This option was granted because those wishing to pray recognised that it is wrong to force religious practice on another person - it is voluntary.
Why could the Christians not voluntarily pray before the formal part of the meeting started and remove the prayer item from the agenda, attendance early to the meeting being self-evidently voluntary? Such a small gesture to entirely avoid this unseemly litigation.
Addendum
Obviously since then matters have moved on as the Local Government Minister, Eric Pickles, signed an order giving wide sweeping powers to local council and has promised to reiterate this in the new Localism Act. Should there be a future case, it would be interesting to see if the judge's obiter remarks in NSS & Bone [30, quoted above] would be cited as authority to quash them again. Even Bideford Town Council seems unsure whether the new power goes far enough.
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