Sunday, 16 December 2012

A Conversation with an Abortion Provider - A thought for Christmas

This Blog is now closing down until the New Year and I finish with a personal reflection.

The Christmas  season begins with the Annunciation and ends with the birth of Christ but in between is an important moment when Mary goes to visit her, also pregnant, cousin Elizabeth who makes the memorable reply to Mary
"when the sound of your greeting came to my ears, the baby in my womb leaped for joy."
a very specific affirmation of the life of the unborn which is commemorated in the Icon above which I first encountered  when I joined the 2011 March for Life in Washington DC

So it is worth remembering that in the year since Christmas 2011 and Christmas 2012 some 200,000 babies will have been legally killed in Britain through Abortion, that means over 500 babies killed every single day.

During 2012 I have been involved in defending Health workers who decline to work in Abortion wards because they want to save life not destroy life.  I was involved in defending members of a pro-life prayer vigil who were being legally threatened by Abortion provider "Marie Stopes Internationaland I am pleased that when their bullying and attempted intimidation was challenged Marie Stopes backed down.

As a follow on from that I had an email exchange with a staff member of another Abortion provider BPAS when I questioned some of the statistics being quoted by BPAS.  The exchange was initially jovial as shown below (out of respect for the BPAS lady I have anonymised her replies)

"From:  BPAS
To: Neil Addison
Sent: Tuesday, October 16, 2012 4:48 PM
Subject: RE: Statistics Quoted on BPAS Advertisement

Dear Neil

will be very interested to see how your complaint to the ASA on this matter is resolved. Do keep me informed.

Best wishes


From: "Neil Addison"
Subject: Re: Statistics Quoted on BPAS Advertisement
Date: 16 October 2012 16:29

Dear  BPAS

Who said I was going to complain to the ASA?  I'm not Marie Stopes International

Best Wishes

Neil Addison"
but that jovial tone changed a bit later on as we continued to correspond

 From: BPAS
To: Neil Addison
Sent: Friday, October 19, 2012 6:29 PM
Subject: Re: Statistics Quoted on BPAS Advertisement

Thank you for your email, Neil.

I suppose what is clear is that your concerns about the campaign are not based on what is statistically accurate or not but on your own moral reservations about abortion. It may be helpful if you were able to separate the two.

And yes, I would describe a woman who has delivered a dead baby whom she has planned and prepared for as a mother, in the same way I would a mother whose child has died at five or fifty. I am glad you do too.

The point really is that many people opposed to abortion appear to labour under the misapprehension that women end pregnancies because they have no idea of the value of what they are carrying and no understanding of what it means to be a mother. On the contrary, it is precisely because they understand what it means to be a mother and the value of life that they decide abortion is what is morally right for them.

Best wishes

From: "Neil Addison"
Subject: Re: Statistics Quoted on BPAS Advertisement
Date: 19 October 2012 19:26


I am sorry we suddenly seem to be disagreeing however I just do not understand your point. My own views on the morality or otherwise of Abortion cannot affect a consideration of the accuracy or otherwise of the Statistics quoted by BPAS in its advert.

Truth is important so whether the statistics BPAS quote are accurate or not is important, after all if BPAS considers the claim that one in three women will have an Abortion important enough to quote in an advert then it important enough to test the claim and I merely wished to establish how accurate the figures were.  I appreciate your honesty in answering my questions as promptly and as fully as you have and as I have indicated I will examine the evidence you and others have provided, I cannot change the figures I can only examine them to see if they support the statistic quoted and if they do then so be it, the truth is whatever it is.

Your separate point about women who have abortions
"it is precisely because they understand what it means to be a mother and the value of life that they decide abortion is what is morally right for them."
is something I find logically unsustainable. The idea that any person can decide something is "morally right for them" is a illogical fallacy since any person can decide that anything whether Abortion, Fraud, Paedophilia or Drink Driving is "morally right for them" but that does not make these actions morally right.

To say that a decision is morally right because an individual has decided that the decision is "morally right for them" is to distort the concept of morality and to turn it into a simple euphemism for personal convenience.

Best Wishes

Neil Addison"

I never received a reply to that last email but I often think about the lady I was corresponding with and what she said. It makes me profoundly sad to think of her and the others involved in this business of killing.I do not believe they are bad or evil people but they are involved in something profoundly wrong and profoundly evil.

Friday, 14 December 2012

Church Volunteers and Employees 2

The Supreme Court in X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59 has agreed with the earlier Court of Appeal decision [2011] EWCA Civ 28 .and the Employment Appeal Tribunal decision [2009] UKEAT 0220_08_3010

All Courts have rejected the suggestion that "Volunteers" of a Charity were covered by the Anti-Discrimination provisions of the Equality Act 2010 (The case itself dealt with the provisions of EU Anti-Discrimination Directive but its findings would have affected the application of the 2010 Act)

The case involved a volunteer at a Citizens Advice Bureau and whether she was protected under the (now repealed) Disability Discrimination Act however it was common ground that the decision would involve all volunteers for any voluntary organisation and would apply to all types of Discrimination covered by the 2010 Act. What the Courts have decided is that the Directive, and hence the Act, only applies to employees and not volunteers.

This decision is of particular significance to all religious organisations because of the large number of volunteers that are always involved with churches, synagogues, mosques, gurdwaras temples etc. If the Equality Act had applied to volunteers then these organisations would have been faced with a potential bureaucratic nightmare as they would have to ensure that every volunteer post was filled in accordance with equality guidelines with the possibility of facing Tribunal claims from disaffected parishioners who felt that they had been overlooked for appointment to a voluntary post. The fact that the law does not apply to volunteers lifts this potential threat from all voluntary organisations and allows them to get on with their primary role

Friday, 2 November 2012

Catholic Care v Charity Commission (4)

The latest round in the legal saga of the Catholic Care Adoption Agency and the Charity Commission has been concluded in the Upper Tribunal decision released today.  

I have blogged about this case before on 3 June 2009 the 23 August 2010 and 26 April 2011 and there is little more to be said

What the Agency was trying to do was to change its objects so as to add the following
"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"

It argued that this would enable them to operate because of the exemption for Charities under Section 193 of the Equality Act 2010  which says

193(1)A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if—
(a)the person acts in pursuance of a charitable instrument, and
(b)the provision of the benefits is within subsection (2).
(2)The provision of benefits is within this subsection if it is—
(a)a proportionate means of achieving a legitimate aim, or
(b)for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

In my view the drafting of this clause was alway fundamentally flawed and the application was foredoomed to failure because it was directly, explicitly and obviously discriminatory and it only dealt with adoption services. In my view the Charity should have applied to amend its constitution to read something like the following

"The Charity shall provide its services in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church."

Worryingly in its judgment despite spending a lot of time talking about the importance of any decision being based on evidence the Upper Tribunal in para 29 endorses the decision by the First Tier Tribunal to have regard to an unsolicited letter sent by the "Roman Catholic Caucus of the Lesbian and Gay Christian Movement" (whoever they are) even though the "Caucus" was not a party to the litigation and provided no facts to support its assertions.  

There are no new or startling points in the judgment though it is worth noting that the Hon Mr Justice Sales did reject, in paras 45 a suggestion by the Charity Commission that the views of the Catholic Church on Same Sex Adoption could be compared to racism

"In my opinion, donors motivated by respect for Catholic doctrine to have a preference to support adoption within a traditional family structure cannot be equated with racist bigots, as Ms Dixon sought to suggest. Such views have a legitimate place in a pluralist, tolerant and broadminded society," 

In para 44 the Judge said

"44.  It is very unlikely indeed that insistence by a donor who was a racist bigot that some benefit be conferred on children in need, but only if they are of a particular race, would be found to justify a body in providing that benefit to classes of person limited in that way. That would involve a gross intrusion upon the values which should be expected to be promoted in the public domain in accordance with the European Convention on Human Rights, which seeks to foster a democratic society marked by pluralism, tolerance and broadmindedness"

and I must say I am troubled by this attitude to Charity even though it is wrapped up in high minded prose.  Surely the very idea of Charity is the free giving by individuals and organisations to help others according to their decisions as to what causes they consider are worthy of support. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to organisations that arrange adoption services only for heterosexuals, or only for homosexuals, or disabled people or black people or white people what right does the government, or the Courts have to interfere with that choice ?
On a sadder and more worrying point the Judge noted in para 47

47: The interest of promoting the traditional family on which the Charity relies has not been endorsed by the national authorities.

Tuesday, 23 October 2012

Lund v. Boissoin - Canadian "Hate Speech" case

An interesting Canadian decision Lund v. Boissoin, 2012 ABCA 300 (CanLII) in the Court of Appeal of Alberta brings (hopefully)  an end to a case involving Freedom of Expression on Homosexuality which has dragged on for 10 years. 

Back in 2002 Pastor Stephen Boissoin wrote a letter to his local newspaper The Red Deer Advocate (set out in para 4 of the Judgment) expressing his views on Homosexuality and his concerns over the increasing acceptance of Homosexuality in Canada and in particular in Canadian Schools.  A Dr. Darren Lund, who describes himself as a human rights educator and activist decided to set himself up as Prosecutor of Mr Boissoin and brought a complaint against him under section 3 of the Alberta Human Rights, Multiculturalism and Citizenship Act which states

3(1) No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that
(a)        indicates discrimination or an intention to discriminate against a person or a class of persons, or
(b)        is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or class of persons.
(2)  Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.

The case was origninally brought before the Alberta Human Rights Commission  which is one of a number of Canadian quasi judicial bodies which have become notorious for their ignoring of basic principles of legal procedure or evidence.  In Lund v. Boissoin, 2007 AHRC 11 (CanLII) the claim was found proved and in Lund v. Boissoin, 2008 AHRC 6 (CanLII)  the commission made an extraordinarily wide ranging and draconian order as follows

a. That Mr. Boissoin and The Concerned Christian Coalition Inc. shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals.  Further, they shall not and are prohibited from making disparaging remarks in the future about Dr. Lund or Dr. Lund’s witnesses relating to their involvement in this complaint.  Further, all disparaging remarks versus homosexuals are directed to be removed from current web sites and publications of Mr. Boissoin and The Concerned Christian Coalition Inc.

b. That The Concerned Christian Coalition Inc. and Mr. Boissoin shall, in future, be restrained from committing the same or similar contraventions of the Act.

c. That Mr. Boissoin and The Concerned Christian Coalition Inc. provide Dr. Lund with a written apology for the article in the Red Deer Advocate which was the subject of this complaint.

d. That Mr. Boissoin and The Concerned Christian Coalition Inc. shall request the Red Deer Advocate publish a copy this Order in the Red Deer Advocate and that they request their written apology for the contravention of the Act be published in the Red Deer Advocate.

e.  That Mr. Boissoin and The Concerned Christian Coalition Inc. shall pay to Dr. Lund an award for damages, jointly and severally, in the amount of $5,000.00.

This decision was strongly overturned in Boissoin v. Lund, 2009 ABQB 592 (CanLII)  when the case finally got before a proper Court namely the Court of Queen’s Bench of Alberta and the Queens Bench decision has now been backed by the Court of Appeal decision

Appeals Court Justice Clifton O’Brien concurred with the Queens Bench decision that Boissoin’s letter “was not likely to expose homosexuals to hatred or contempt within the meaning of the Alberta statute.”

Notable points in the Appeal Court decision are

60: Language which is offensive and hurtful to others does not necessarily qualify as hateful or contemptuous speech.

62:  Context is of particular importance when considering complaints based on sexual orientation and the impact on freedom of expression.  Most often, underlying these complaints are issues relating to matters of morality. It is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour. For this reason there will be a relatively high degree of tolerance for the language used in debates about moral issues, subject, of course, to limitations.  Anything that limits debate on the morality of behaviour is an intrusion on the right to freedom of expression.

[64] I would add that moral issues often also relate to the freedom of religion – another fundamental right protected by the Charter. A moral statement arising out of religious conviction may, in some cases, be seen as the dissemination of religious belief – an aspect of freedom of religion. Dickson J., as he then was, underscored this point in R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295 at 336, 18 DLR (4th) 321:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

The "Charter" referred to is the Canadion Charter of Rights and Freedoms  which is part of the Canadian Constitution Section 2 of which says

2 Everyone has the following fundamental freedoms:
(a)     freedom of conscience and religion;
(b)     freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Boissons Lawyer in Alberta Gerald Chipeur, Q.C. has been quoted as saying

“This was a watershed case, ...Very important, in terms of freedom of expression and religious liberty. Going forward, it will be extremely difficult, if not impossible, for religious or political debate to be found in breach of Alberta’s current human rights laws.”

“Christians and other people of faith should not be fined or jailed for expressing their political or religious beliefs. There is no place for thought control in a free and democratic society ....The tools of censorship should not be available to prohibit freedom of religious expression in Canada. The court rightly found that this type of religious speech is not ‘hate’ speech.”

Since the Canadian Charter is similarly worded to the European Convention on Human Rights this decision may also have relevance should any cases of a similar type be brought in Britain.  Fear of this type of time wasting gesture litigation was one of the main reasons why many people including myself opposed the idea of including Religious and Sexual Orientation Harassment within the Equality Act 2010 and I am glad we succeeded

Wednesday, 19 September 2012

Religious Persecution and a Right to Asylum in the European Union

A decision by the European Court of Justice (nb NOT the European Court of Human Rights) will have an impact on how applications for Refugee Status are considered in European Union Countries.

The case Bundesrepublik Deutschland v Y & Z [2012] EUECJ C-71/11  involved two Ahmadi Muslims who went to Germany from Pakistan and were threatened with deportation.  They appealed to the ECJ on the basis that the German Courts were wrongly applying European Council Directive  2004/83/EC which establishes a common definition of refugee status throughout the EU.  In Pakistan the Amhadi Muslim community suffers a considerable degree of Religious persecution including the fact that they are not allowed to call themselves Muslims or call their Mosques "Mosques".  

The German Courts originally decided that the two could be deported because they would still be able to have their beliefs the law merely prevented them publicly practicing their beliefs.  As the ECJ put it in para 42 of its decision

there could be deemed to be persecution relevant for the purposes of the right of asylum only where there was interference with the ‘core areas’ of religious freedom, but not where there were restrictions on the public practice of faith,

The ECJ disagreed with this approach and decided that a fear of religious persecution was well founded where (para 81)

it may reasonably be thought that, upon his return to his country of origin, he [the refugee] will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities [ie immigration authorities] cannot reasonably expect the applicant to abstain from those religious practices.

The point that merely being allowed to pray privately is not enough to prevent persecution is particularly interesting because it goes contrary to the arguments of the UK government in the 4 Religious Freedom cases currently before the European Court of Human Rights, the UK Government and indeed UK courts have taken the view that Religious practice is entirely private and perhaps this case may have some relevance in causing that view to be questioned. 
The logic of the ECJ decision is similar to that in a decision made by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 31 - which related to Gay Asylum seekers from Iran.  The Supreme Court had held that Homosexuals had to be allowed to practice Homosexuality openly otherwise they were being persecuted and that logic should also be applied to the practice of a religion

Wednesday, 22 August 2012

Doe v Holy See - Oregon Decision

Back in July 2010 I  blogged on the case of Doe v Holy See   which was an attempt in the US to sue the Holy See (AKA:  the Papacy, the Vatican) over the alleged abuse of the Plaintiff by a Catholic Priest.  As I indicated in that Blog and I noted in a  follow up Blog in August 2010  this was going to be hard to do. 

According to reports in other Blogs such as  Vatican Inside  and  Life Site News  the cases against the Holy See have now been thrown out by the Judge.  I have tried to obtain copies of the Judgment but have been told by the Court that because there are other claims still continuing and it is only an interim judgment on an aspect of the overall claim there is no definitive judgment I can refer to to check the reports.

With that "Health Warning" having been given the decision appears to be based on the, not surprising finding by the Judge that

“There are no facts to create a true employment relationship between Ronan [the former priest] and the Holy See,”

Friday, 17 August 2012

Pussy Riot in a British Church

The news that members of  Pussy Riot the Russian Punk Rock band have been jailed for "performing" in Christ the Saviour Cathedral in Moscow has been widely criticised but I do feel that the question needs to be asked whether what Pussy Riot did would be considered legal in any country.

They sang and danced in front of the Iconostasis which is one of the holiest parts of an Orthodox Church whilst making the sign of the Cross and prostrating themselves in a parody of prayer.  According to the translation given on the You Tube Video (and I do not speak Russian so I cannot confirm it) the song they sang went as follows

St. Maria, Virgin, Drive away Putin
Drive away! Drive away Putin! (end chorus)

Black robe, golden epaulettes
All parishioners are crawling and bowing
The ghost of freedom is in heaven
Gay pride sent to Siberia in chains

The head of the KGB is their chief saint
Leads protesters to prison under escort
In order not to offend the Holy
Women have to give birth and to love

Holy shit, shit, Lord's shit!
Holy shit, shit, Lord's shit!

(Chorus)  St. Maria, Virgin, become a feminist
Become a feminist, Become a feminist  (end chorus)

Church praises the rotten dictators
The cross-bearer procession of black limousines
In school you are going to meet with a teacher-preacher
Go to class - bring him money!

Patriarch Gundyaev believes in Putin
Bitch, you better believed in God
Belt of the Virgin is no substitute for mass-meetings
In protest of our Ever-Virgin Mary!

(Chorus)  St. Maria, Virgin, Drive away Putin
Drive away! Drive away Putin!  (end chorus)

So by any definition the incident involved Pussy Riot shouting obscenities in a Church whilst worshipers were there, disrupting a service, shouting insults about the Orthodox Church and parodying worship.

In Britain that would constitute a criminal offence contrary to 

s2  Ecclesiastical Courts Jurisdiction Act 1860
Penalty for making a disturbance in churches, chapels, churchyards etc
Any person who shall be guilty of riotous, violent, or indecent behaviour in England in any cathedral church, parish or district church, or chapel of the Church of England, or in any chapel of any religious denomination, or in England in any place of religious worship duly certified under the Places of Worship Registration Act 1855, 18 & 19 Vict c 81, whether during the celebration of Divine service, or at any other time, or in any churchyard, or burial-ground, or who shall molest, let, disturb, vex, or trouble, or by any other unlawful means disquiet or misuse any preacher duly authorised to preach therein, or any clergyman in Holy Orders ministering or celebrating any sacrament or any Divine service, rite, or office in any cathedral church or chapel, churchyard, or burial ground shall on conviction thereof before two justices of the peace, be liable to a penalty of not more than level 1 on the standard scale, or may, if the justices before whom he shall be convicted think fit, instead of being subjected to any pecuniary penalty be committed to prison for any time not exceeding two months.

Under s28 of the Crime and DIsorder Act 1998 a "Religiously Aggravated Offence" is committed when 

 (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim's membership (or presumed membership) of a racial or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group.
 "Religious Group" is defined as
"a group of persons defined by reference to religious belief or lack of religious belief."

So Pussy Riot could have been convicted in England of a Religiously Aggravated Offence probably either s5 or s4A of the Public Order Act. Section 4A carries a 2 year maximum sentence when it is an aggravated offence and s5 caries a fine 

Intentional harassment, alarm and distress - Public Order Act 1986, s. 4A
(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he–
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
thereby causing that or another person harassment, alarm or distress.

Harassment, alarm and distress - Public Order Act 1986, s. 5
(1) A person is guilty of an offence if he–
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

There is also the offence of Aggravated Trespass under s68 Criminal Justice and Public Order Act 1994 which carries a sentence of up to 3 months imprisonment and which says 

Offence of aggravated trespass.
(1)A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
(a)of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
(b)of obstructing that activity, or
(c)of disrupting that activity

Since the words "sung" were not threatening the Pussy Riot group could not have been convicted in Britain of the Offence of Incitement to Religious Hatred  but they would still have faced the likelihood of prosecution and possible imprisonment though not for the possible sentence that they received in Russia

Whilst I personally think the sentence was excessive there is one aspect to the incident which has not been commented on in the British media and may explain why Orthodox believers in Russia were quite so outraged.  The Cathedral of Christ the Saviour is of special importance.  It is a reconstruction of a Cathedral which was deliberately destroyed in 1931 as part of the persecution of Christians in the Soviet Union .  During this persecution groups such as the League of Militant Atheists often desecrated Churches and engaged in parodies of religious ritual whilst singing obscene songs.  

In the West we seem to have almost forgotten Communism and the evils it brought but people in Russia have not.  I notice that in Court one of the Pussy Riot demonstrators wore a T Shirt bearing a clenched fist and the words "No Pasaran" which was a slogan of the Spanish Communist Party during the Spanish Civil War.  It was a bit like appearing in a German Court wearing a T Shirt with a Nazi Slogan.  In those circumstances perhaps it is not surprising if Russians have taken a rather less rosy eyed view of the incident than that of the Western media


Tuesday, 24 July 2012

B&B Owners and Sexual Orientation - Canada

A recent case in Canada deals with almost exactly the same legal question as was considered by the Court of Appeal in February in the case of  Bull v Hall & Preddy [2012] EWCA Civ 83 which I blogged about  here 10 February 2012.   

The issue in both cases involved the Christian Owners of a Bed and Breakfast establishment refusing to let out a double bed room to a Same Sex Couple.  

 In Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2),2012 BCHRT 247   the Christian owners of a bed and breakfast in British Columbia have been ordered to pay around $4,500 in damages after they refused to rent a room to a same sex couple.

Brian Thomas and Shaun Eadie had reserved a room at the Riverbend B&B in Grand Forks in June 2009, but owners Les and Susan Molnar cancelled the reservation after realising they were a homosexual couple.  Thomas and Eadie then filed a complaint with the British Columbia Human Rights Tribunal  which ruled in their favour..

Tribunal member Enid Marion ordered the Molnars to “cease and desist the discriminatory conduct,” (apparently they had already closed the B&B down in September 2009 as a result of the incident.)

Marion agreed with the two men that the Molnars violated section 8 of the B.C. Human Rights Code , which states that it is a discriminatory practice to
“deny to a person or class of persons any accommodation” because of “sexual orientation.”

He ordered them to pay each man $1,500 for damages to “dignity, feelings and self-respect,” in addition to their travel expenses and lost wages for the tribunal proceedings. In the judgment he wrote

“Having entered into the commercial sphere, the Molnars, like other business people, were required to comply with the laws of the province ... that prohibits discrimination on the basis of sexual orientation,”  
The legal reasoning in this Canadian decision seems indistinguishable from the reasoning in the English "Bull v Hall " case in February

Tuesday, 17 July 2012

Catholic Bishops and Vicarious Liability for Priests - 2

The case of JGE v The Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 (12 July 2012) is a follow on from the same case in the High Court JGE v The English Province of Our Lady of Charity & Anor [2011] EWHC 2871 (QB) (08 November 2011)  which I blogged about last year

The issue in the case is whether the Portsmouth Diocese could be held Vicariously Liable for alleged Child Abuse occurring 40 years before (I'll return to that point later).  The Claimant alleges she was raped when she was 6 by a Priest of the Diocese.  The Catholic Church does not regard Priests as being its employees but rather as being "Office Holders" and usually in law there is no liability attaching to the acts of a Office Holder, this was for example the legal position as regards Police Constables and it was not until the Police Act 1964 (now s88 the Police Act 1996  )that Chief Constables were made vicariously liable for the wrongful acts of Police Constables under their command. However this act did not change the general legal point that office holders are regarded in law as not being employees and hence as not having an employer who can be held vicariously liable for their acts.

In many other cases involving allegations of sexual abuse by Catholic Clergy the relevant Diocese have not argued the vicarious liability point but agreed that the Court could approach the issue "as if" the Priest in question was an Employee; in this case however the Diocese decided to argue the issue as to whether the Diocese was legally liable and it was argued as a preliminary issue. The Court of Appeal obviously had reservations about this approach as Lord Justice Ward said in para 6
I am far from convinced that trying a preliminary issue is the best way to deal with questions of this sort. 

The Court was also aware that on the facts alleged the Diocese itself was not at fault and did express and indeed Lord Justice Davis noted in para 133 that the entire principle of Vicarious Liability raised questions about
the extent to which, as a matter of policy, an innocent defendant should (without fault) be made to bear responsibility for the wrongful acts of another.

However the Court did decide that even though a Catholic Priest was not an Employee of his Diocese or his Bishop nevertheless the Diocese was vicariously liable for the alleged acts of the Priest and it did accept that in this decision it was extending the legal concept of Vicarious liability.  The ruling has implications for all forms of voluntary organisations since it opens them to the possibility of being sued for the actions of non employees such as volunteers, school governors etc.

More worrying for me is the fact that in this case the Defendant is having to defend itself against allegations of abuse occurring 40 years ago at the hands of someone who is dead.  The allegations are entirely based on the evidence of the Claimant and the accused Priest was dead before the allegations were made. This  puts an impossible burden on any organisation to defend itself.

The Limitation Act 1980  is supposed to prevent claims being brought after six years but the Courts have interpreted it in such a way as to allow sex abuse claims to be brought decades after the alleged events and this makes having a fair trial impossible and circumvents the intention of Parliament when it passed the Limitation Act.  It opens Churches, the Boy Scouts, Barnardos and State Care Homes to the danger of unjustified legal claims in which the only evidence is unsupported allegations made against persons who are dead and unable to defend themselves or their reputation

It is ironic that this decision was made just a week before the High Court begins to hear a case against the UK Government for alleged misconduct in the Mau Mau uprising more than 50 years ago.  By allowing that case and the Portsmouth case to proceed the Courts have subverted the Limitation Act.  Parliament does need to have another look at the entire issue of limitation; surely there has to be a point where allegations are so old that it is simply wrong to allow them to proceed to trial.

Friday, 18 May 2012

Fernandez-Martínez c. Espagne

The European Court of Human Rights has just issued its judgment in the interesting case of Fernandez-Martínez c. Espagne which concerned the right of a Catholic Bishop to terminate the teaching post of a Religious Education teacher at a State School.  The judgment is currently only available in French .

The case concerned a refusal to renew the contract of a Catholic religion and morals teacher who was a “married priest”, father of five, after the publication of an article by him which made his belonging to the “Pro-Optional Celibacy Movement” public. In Spain, religion teachers in State schools are contractual employees of the State, appointed on the proposal of and with prior approval of the local Bishop. The Bishop may withdraw or refuse to renew this agreement, which binds the employer State-school.

This case questioned whether the Church could to withdraw its agreement from a Catholic religion teacher for religious reasons, while the material causes of the withdrawal (marriage and positions taken in the press) enjoyed human rights protection, especially the right to respect for private and family life (article 8) and the right to freedom of expression (Article 10). As the Court said, the main question raised by this case was 
“whether the State was bound by its positive obligations under Article 8 to give priority to the applicant’s right to respect for private life upon the right of the Catholic Church to refuse to renew his contract”

The Court held that
“the requirements of the principles of religious freedom and neutrality prevent it from going further in the assessment of the necessity and proportionality of the decision not to renew” the contract since the circumstances which motivated this refusal to renew were of “a strictly religious nature”.

The role of the Court was
“limited to verifying that the fundamental principles of the domestic legal order or the dignity of the applicant have not been infringed”
and other than that the Court could not rule on the necessity and the proportionality of the decision of the Church because doing so could interfere with the rights of the Church under Article 9 and  Article 11 of the Convention (freedoms of religion and association).

The Court also refered to the “special confidence link” which must unite a Catholic religion teacher with the Catholic Church and considered that the teacher was submitted to an increased obligation of loyalty because of the special nature of his position.The Catholic authorities, in refusing to renew his employment
“simply fulfilled their obligations in accordance with the principle of religious autonomy”

The judgment is undoubtedly important in the sphere of Human Rights jurisprudence and could strengthen the position of Faith Schools in the UK in relation to ensuring that the conduct of teachers conforms to the beliefs of their religion.

Friday, 11 May 2012

Defiance is the Only Answer

Another Blogger going by the Nom de Plume of   Archbishop  Cranmer has apparently been threatened by the Advertising Standards Authority for daring to put on his Blog the following Advert

Now I do not normally put adverts on my Blog but I get so fed up with the small minded little Hitlers who seem to infest organisations such as the ASA and the Equality and Human Rights Commission that I have added it to my Blog simply as an expression of solidarity with my fellow Blogger. Can I encourage any other believers in Free Speech to do the same the URL is

Incidentally for those who didn't know yesterday was Liberation Day in the Channel Islands when they celebrate their liberation from Nazi occupation, the only part of the British Isles to be occupied.  We in this country fought a war to defend our right to speak freely and express our opinions but clearly the ASA are not aware of that fact.  

And for those who are in favour of Same Sex Marriage I just make this point.  My posting here is not about SSM and whether it is a good idea or a bad idea. I am posting simply in the name of Freedom, the freedom to express a point of view with which other may disagree because as Lord Justice Sedley put it so memorably in Redmond Bate v DPP 

"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having."

Tuesday, 17 April 2012

Same Sex marriage and the European Court

In the case of Gas and Dubois v France 25951/07 the European Court of Human Rights considered the issue of whether there was any right to same sex marriage under the European Convention on Human Rights and decided that there was none. Unfortunately the judgment is only available in French "Zut Alors !" however "La Garde meurt mais ne se rend pas!" so I will take the chance of commenting nevertheless.

In the Gas case the Court reaffirmed its earlier decision in Schalk and Kopf v. Austria 30141/04 that there is no obligation under the Convention for States to legalise same sex marriage or indeed to legalise same sex civil partnerships. However it also reaffirmed that if a member State did decide to legalise same sex marriage then they had to ensure that it was provided on exactly the same basis as heterosexual marriage. This has particular relevance for the UK in view of the current consultation the UK and Scottish Governments are running on the possible legalisation of same sex marriage.

In the UK consultation the Government states that the legalisation of same sex marriage would
"make no changes to religious marriages. This will continue to only be legally possible between a man and a woman"
but this assurance is completely at odds with the European Courts decision in both the Schalk and Gas cases.

What the Government assurance is ignoring is the fact that, in law, there is no difference between "Civil" as opposed to "Religious" marriage both are in law the same thing and merely take place in different premises. Therefore on the basis of the both the Schalk and Gas cases if the Government legalises same-sex marriage then it must legalise it on exactly the same basis as it legalises heterosexual marriage ie the Government will be obliged to permit same-sex marriage on religious premises on exactly the same basis as it permits heterosexual marriage on religious premises.

How this will affect the rights of Churches who are registered for marriage and in particular how it will affect the Church of England and its clergy who are Registrars of Marriage by virtue of their status as Priests of the Established Church is legally very arguable. Certainly a good legal case can be made that any place or person who is registered to perform marriage must be willing to perform same sex marriage on the same basis as they conduct heterosexual marriage since, in law, there will be no difference between the two.

It must also be remembered that in the case of Ladelle v Islington Council [2009] EWCA Civ 1357 the Court of Appeal held that Mrs Ladele's view of Marriage "the orthodox Christian view that marriage is the union of one man and one woman for life" (para 7) "was not a core part of her religion" (para 52) and therefore if Churches are told that they have to be willing to perform same sex marriage ceremonies they will have little legal ground to resist.

The combined effect of the European Court decision and the Ladele decision seems to be clear. If same sex marriage is legalised in the UK then religious same sex marriage will have to be legalised also. Churches which perform heterosexual marriages will have to be willing to perform same sex marriages and they will have no legal grounds to resist since the (secular) Courts have determined that the "Orthodox Christian view of Marriage" is not a "Core" part of Christian belief.

Monday, 12 March 2012

Crosses Turbans and Hijabs

It has been reported that the Government has replied to various cases before the European Court of Human Rights regarding the wearing of the cross by Employees. The Governments view, and that of the Courts would appear to be that bans on the wearing of a cross are OK because the wearing of the Cross is not compulsory in Christianity, therefore the wearing of the Sikh Turban or Islamic Hijab cannot be prohibited but the wearing of a cross can be.

My big worry with this approach is the idea that a Secular Government and Secular Courts are allowed to discriminate between Religions based on Theological points within the religions themselves. There seems no awareness that this distinction is itself discriminatory because it gives a privileged legal position to those religions with specific and detailed rules as against those with more flexible rules.

More to the point the distinction misunderstands the nature of religious practice which is often a complex mixture of rules, beliefs, customs and rituals which often may not be formally prescribed but which are nevertheless regarded by religious believers as integral parts of their faith. The Second Council of Nicaea 787 noted that "the sacred and life-giving cross is everywhere set up as a symbol" and for Millenia the wearing of a cross by Christians has been regarded as a fundamental custom and practice of most Christians even though it has not been been formally required as an obligation of faith.

Therefore to attempt to distinguish between the wearing of a cross and the wearing of a Sikh Turban or Islamic Hijab on the basis that one is required but the other is not is to create a completely theologically illiterate, an artificial and an unrealistic distinction. It is an approach that goes against the fundamental principle of a secular society with secular courts because it involves secular Courts making religious decisions as to what is or is not compulsory in a religion.

What is also worrying is why the Courts and now government have adopted this approach. Article 9 of the European Convention of Human Rights says

Article 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

What the Courts and Government are saying is that the wearing of a cross is not a "manifestation" of religion because it is not compulsory therefore restrictions on the wearing of a cross do not have to be justified under Article 9.2 as being restrictions which are "necessary in a democratic society".

I suspect that most fair minded secularists and atheists would accept that the wearing of a cross by a believing Christian is a "manifestation" of the Christian faith even if they think that that manifestation should be restricted or banned along with the manifestation of other forms of religion. If so then those Atheists and Secularists would be being more fair minded towards Christians than the British Courts or the British Government.

Wednesday, 7 March 2012

Call the Midwife - I want an Abortion !

The Scottish Court of Session case of Doogan & Wood v Greater Glasgow Health Board [2012] CSOH 32 dealt with two issues regarding the right of Midwives to refuse to participate in Abortion, namely Article 9 (Freedom of Religion) of the European Convention on Human Rights and the "Conscientious Objection" clause in s4(1) of the Abortion Act 1967.

The facts are that Doogan and Wood are experienced senior Midwives who worked in a supervisory capacity in the Labour Ward of their Hospital. Due to changes in Hospital routines etc Abortions began to be performed in the Labour ward supervised by Midwives. (Personally I don't know what kind of sicko in the NHS decided that a Labour Ward is the right place to kill unborn babies and that Midwives are the right people to train to be baby killers but that wasn't an issue in the legal case) The change of policy put the two midwives in the situation that led to the case.

They objected to Abortion on Religious Grounds (they are Roman Catholics and the Catholic position on Abortion is pretty unambiguous) and sought to rely on the Conscientious Objection clause in s4(1) in order to be excused from supervising the "patients" who were in for Abortions. (It is worth noting here that the conscientious objection clause is not restricted to believers in religion, an Atheist who believes, as many do, that the unborn child is human is entitled to rely on s4(1) just as much as a religious person.)

The problem that the two Midwives had was that the Hospital did not accept that s4(1) covered their supervisory functions but insisted that it only applied to direct involvement in the physical act of Abortion. The Midwives referred to s4(1) which says that
"no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objection"
and the legal case revolved around the question of what "participate in any treatment" actually meant.

The main case which had considered this point previously was Salford Health Authority v Janaway [1989] 1AC 537 where a typist had tried to rely on s4(1) when she refused to type a letter referring a patient for an Abortion. Not surprisingly perhaps the House of Lords in that case decided that a secretary typing a letter did not involve participation in treatment. In this case however it was midwives who claimed to be participating and there is no doubt that they were employed because of their skill and training as Midwives.

Despite this the Judge in what is a rather sparsely reasoned decision decided that what they were doing in supervising the Abortion process did not in law amount to participation in Abortion. She mentions and in large part relies on the wording of the Nurses Contract and the guidelines issued by the Nursing and Midwifery Council and the Royal College of Nurses which is somewhat peculiar in view of the clear wording of s4(1) that the right of conscientious objection overrides any "contract or .. any statutory or other legal requirement", that to my mind means that s4(1) should have been considered without any reference to the views of the NMC or the RCN or their guidance. If the Contract had to be considered perhaps more consideration should have been given to a clause mentioned in para 16 of the Judgment "ensuring that women's and babies' needs are assessed, care planned, implemented and evaluated", after all no baby needs an Abortion.

A lot of the legal argument in this case, as in the Janaway case, revolved around the criminal law of accessories or, in the Scottish legal parlance "art and part", but I wonder if more help might have been gained from looking at the Civil Law of negligence and professional liability. If a woman who was in the Labour Ward for an Abortion fell ill or died due to their Abortion "treatment" being incorrect or not properly managed when either of these senior midwives were on duty could they have been professionally disciplined by the NMC. If they could then surely they are "participating" in the treatment because they cannot be held to be professionally liable for an incorrect treatment that they have no involvement with. This does not seem to have been a point considered in this judgment but may perhaps be considered in what is, I suspect, an inevitable appeal.

The case also considered Article 9 but there is little point in dealing with those legal arguments since the Judge followed the previous cases under which the UK Courts have interpreted Article 9 so that it has become virtually meaningless as a form of legal protection. The view of the Courts is that if your job in any respects interferes with your religious belief then you have to get another job and you cannot rely on Article 9 to help you. Of course if you are a murderous terrorist or an illegal immigrant who has committed a crime for which you should be deported then the Human Rights Act will protect you to the end but if you are an ordinary person who wants to wear a crucifix or, in this case, refuse to take the life of an unborn child then the Human Rights Act will do nothing for you.

Oh and as a final point some people have suggested that because this case occurred in Scotland it would have no relevance to the legal position in England and Wales, but that unfortunately is not the case. The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and the Human Rights Act (and hence article 9) applies throughout the UK. Though Scotland is a separate legal jurisdiction to England and Wales in practice wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions are accepted without question in England and Wales and Visa Versa. The Outer House of the Court of Session is equivalent in status to the High Court of England and Wales and therefore this case will in practice be treated south of the border on exactly the same basis as if it had been a decision of the High Court.

Friday, 10 February 2012

Council Prayers

And now for the completely Bizarre Legal decision Bone v Bideford Town Council [2012] EWHC 175 (Admin)

In this case a Town Councilor objected to fact that Council meetings started with prayers. The procedure was that the Mayor entered the Council Chamber and then there were prayers led by a Minister or Priest chosen in rotation from one of the 8 Churches in the Town. After prayers apologies for absence were taken and the meeting carried on, no Councilor was obliged to be present during the prayers and the custom dated back to Elizabethan times.

An objection was raised by a Mr Clive Bone who is an Atheist and was for a few years a town Councilor. He objected to the Prayers and, as is his right, he raised the issue in the Council. Para 8 of the Judgment explains

"There had been no objection to the practice until Mr Bone was elected in 2007. He made no complaint for 9 months, and then in January 2008 he proposed a motion that prayers cease: it was a tradition no longer appropriate, which could deter some from seeking office, contrary to equality policies. His motion was defeated by 9 votes to 6, with 1 abstention. He withdrew a similar motion in March 2008, but in September 2008 put forward another motion which would have replaced prayers with “a short period of silence”. This was defeated by 10 votes to 5. A campaign by humanists and the National Secular Society then ensued. This litigation is part of that campaign".

In simple terms therefore Mr Bone lost two democratic votes and then decided to use the law to force his views on his colleagues. He based his case on breach of his Human Rights under Article 9 of the European Convention on Human Rights and Belief Discrimination contrary to the Equality Act 2010 and had he won on either of those grounds then the decision might well have had significant implications for the practice of public prayers at a range of events including Remembrance Day and the opening of Parliament (when Her Majesty the Queen expresses the hope that God will guide the members of Parliament in their deliberations) but he lost on both of these points of principle.

He won however on an extremely narrow point of interpretation of s111 Local Government Act 1972 which says that
"a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."

As a lawyer I find the decision bizarre I could almost find it easier to understand a decision based on breach of Article 9. The basis of the decision seems to be the legal concept of "ultra Vires" which prevents public bodies engaging in actions which are not permitted by legislation. However the Ultra Vires doctrine like all doctrines is subject to the old idea that "the law is not concerned with trifles" which in modern context is usually expressed as the concept of proportionality. By any rational analysis it seems wholly disproportionate to say that a local ceremony which has lasted for hundreds of years is unlawful merely because it is not specifically mentioned in legislation.

Also bizarre is what the Judge said at para 27
"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. The majority acknowledge such response or feelings to be ones which it is right to accommodate; such feelings are in that sense a reasonable response to the course of action preferred by the majority. I appreciate that the saying of prayers may cross party lines, but I cannot see that it would be different from incorporating some other form of religious or secular but potentially divisive ceremony, such as the singing of a political party’s song, into the meeting."

On the basis of that paragraph if the Council were to meet on November 11th and was to incorporate into its Agenda a 2 minutes silence in remembrance of the War Dead that would also be illegal if a pacifist objected on the basis that this "secular ceremony" (to use the Judges own designation) was divisive towards pacifists

B&B Owners and Sexual Orientation

Two legal decisions today one not unexpected and one completely bizarre

In Bull v Hall & Preddy [2012] EWCA Civ 83 the Court of Appeal confirmed that two B&B owners had discriminated against a same sex couple by refusing to let them have a Double Room. The decision was based on the provisions of the Equality Act (Sexual Orientation) Regulations 2007 which have now been incorporated into the Equality Act 2010.

Essentially the Bulls are a Christian couple who believe that sex should only take place in the context of a married, monagamous and heterosexual relationship. They run a Bed and Breakfast and applied a rule that only married couples could share a room, the rule was applied to unmarried heterosexual couples as well as same-sex couples. However the Court held that since, by definition, a same sex couple could never fall within the definition of a married couple applied by the Bulls the rule was discriminatory towards same sex couples and hence illegal.

I am not surprised by the ruling which was to be expected in view of all the previous decisions on the rights, or to be more precise, lack of rights of Christians in the public sphere. However what does irritate me is that the Judge did not try to address the basic point behind the Bulls objection namely the fact that giving a double room to an unmarried couple would make the Bulls morally complicit in an immoral act. Were they, for example, running a restaurant and had refused to give a meal to a same sex couple then that would have been simple discrimination but their stand was more nuanced than that and it is unfortunate that that British Courts seem unable to recognise that point

Monday, 30 January 2012

Freedom of Speech and London University Students

Students at University College London have voted to force Catholic organisations to invite pro-abortion speakers to pro-life discussions.

The motion, adopted by 2,002 votes to 818, says:

“Any future open events focusing on the issue of termination invite an anti-choice speaker and a pro-choice speaker as well as an independent chair, to ensure there is a balance to the argument.”

The union also voted to adopt a pro-abortion stance and formally affiliate itself to the organisation Abortion Rights.

The motion noted:

“On October 31 2011, UCLU Catholic Society advertised a ‘discussion’ around the issue of abortion which consisted of one pro-life speaker. It is also noted that people who held opposing views were invited to attend......It continues: “An official pro-choice policy would not prevent students who disagree with termination on ethical or religious grounds from exercising their right not to seek a termination. Pro-choice policy encourages students to make well-informed decisions regarding their bodies and their futures. When clubs and societies invite pro-life speakers they should also invite a pro-choice speaker to balance the debate and vice versa.”

I hope the Catholic Society simply ignores this Motion which is completely illegal under s43 the Education (No 2) Act 1986 which guarantees freedom of speech at Universities also illegal under Articles 9, 10, and 11 of the European Convention on Human Rights.

The Student Union has no right to dictate what speakers are invited by Student Organisations. Also the resolution assumes that everyone involved in this debate can be easily categorised as "pro-life" or "pro-choice" which is a simplistic analysis. Many people for example regard Nadine Dorries MP as "pro-life" though she describes herself as "pro-choice". What right does the Student Union have to decide which category a speaker should be classified under ?

The Students who voted for this resolution have demonstrated a totalitarian intolerance unworthy of an Academic Institution. Hitler and Stalin would be proud of them.