The case of Johns and Johns v Derby City Council [2011] EWHC 375 (Admin) is yet another round of the in the battle between Christian Rights and Homosexual Equality and follows arguments familiar in McFarlane v Relate BAILII: [2010] EWCA Civ B1 and Ladelle v London Borough of Islington [2009] EWCA Civ 1357.
The case involved a Christian couple who had applied to be foster carers in Derby but who, when visited by social workers, were perceived to be negative when asked how they would deal with questions about homosexuality or how they would deal with a homosexual child. However, as the Court itself noted no final decision had been made when the case was launched. It is clear that for that reason alone they considered the claim to be premature; the basis for a Judicial Review is that a decision by a public body is irrational and since no decision had yet been made it could hardly be said that any decision was irrational.
It is also clear from the judgment itself that the Court was pretty fed up with what is saw as the regurgitation of arguments which had been dealt with in the Ladelle and Mcfarlane cases. They were also critical in paras 32-34 of what they describe as "extravagant rhetoric" and in general the claims made about the significance of the case and the actions of Derby Council
Paras 38-39 are worth quoting in full
"38: Although historically this country is part of the Christian west, and although it
has an established church which is Christian, there have been enormous
changes in the social and religious life of our country over the last century.
Our society is now pluralistic and largely secular. But one aspect of its
pluralism is that we also now live in a multi-cultural community of many faiths.
One of the paradoxes of our lives is that we live in a society which has at one
and the same time become both increasingly secular but also increasingly
diverse in religious affiliation.
39: We sit as secular judges serving a multi-cultural community of many faiths.
We are sworn (we quote the judicial oath) to “do right to all manner of people
after the laws and usages of this realm, without fear or favour, affection or ill
will.” But the laws and usages of the realm do not include Christianity, in
whatever form. The aphorism that ‘Christianity is part of the common law of
England’ is mere rhetoric; at least since the decision of the House of Lords in
Bowman v Secular Society Limited [1917] AC 406 it has been impossible to
contend that it is law. "
All in all this does appear to be a case that should not have been brought and which, from the point of view of orthodox Christians has done more harm than good
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4 comments:
"We sit as secular judges serving a multi-cultural community of many faiths." - But multiculturalism has failed so they are serving a failed community. Brilliant!
I find the wording odd re Christianity not forming a part of law. I can see that Christianity does not influence the application of law. But Measures of the General Synod, for example, receive Royal Assent and there are many laws applying to clergy -the obligation to baptise, marry and bury, for example.
Does there always need to be an irrational decision to launch a judicial review?
In this case, both parties brought a joint application, seeking declaratory relief.
The court knew full well what the case was about and that there was no decision by the council and were happy to take it- indeed even upgrade the panel to include a second judge.
The striking thing about this judgment is how un-novel it was and how little it decided. Whole sections were lifted almost verbatim from Munby J's earlier judgment in Jewish Free School.
This particular line of case law goes back to at least the early 90s, and in some respects back to the Bowman case that was referred to in the judgment, which the House of Lords heard in 1917.
I've examined the evolution of the law in more detail at http://religiousstudiesblog.blogspot.com/2011/03/christianity-and-law-of-england.html
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