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."