Case note–Smith (Adrian) v Trafford Housing Trust

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.’

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

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.

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/)

1. Governments exist to restrain evil
2. Marriage is sacred
3. Parents have a God-given authority over their children
4. Drug taking is wrong
5. ‘Harm reduction’ approaches are un-Christian
6. Religious freedom must be preserved
7. Life is sacred from conception
8. Christianity and the state
9. Christian beliefs on transsexualism
10. 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

Principles
(http://www.baptist.org.uk/what-is-a-baptist/declaration-of-principle.html)

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)

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."

See http://www.baptist.org.uk/latest-news/845-consultation-on-marriage.html.]

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.

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:

1. 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.
2. 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.

For an alternative opinion, see the UK Human Rights Blog.

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.

amongst other possible purposes.

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]:

1. 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.
2. 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.
3. The exaltation of protagonists and their motives coupled with the demonisation of opponents and their motives.
4. 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."

The Catholic position on marriage, as expressed by the Archbishops, does appear to present the matter as self-evident, not even acknowledging opposing views such that pupils could arrive at an independent understanding. It also appears to derive a moral consequence, and the inclusion of the information about the petition implies a course of action – although we'll look at that aspect presently.

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.

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:

Subsidiary powers of local authorities.
(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.

So potentially a three stage test: do the prayers facilitate something, are they conducive to something or are they incidental to something?


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.
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]

Not that it should make any difference, but Lord Justice Laws is himself a "devout Christian."


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.