Free Speech debate on BBC

For those who may be interested I took part recently in a Debate on concerning Freedom of Speech for the BBC Radio 4 programme "Unreliable Evidence"

First Broadcast on 29 May you can 

 listen to the prgramme on the Internet HERE 

The programme is presented by Clive Anderson (Who does a first class job) and includes 

Barrister Ivan Hare,  Chief Constable Andrew Trotter and Professor Gavin Phillipson as well as myself. 

UPDATE:
An excellent review of the discussion can be read at TheTweetingLawyer.blogspot.co.uk 

Methodist Minister is not an Employee

In the case of President of the Methodist Conference v Preston [2013] UKSC 29 the Supreme Court had to consider the, surprisingly complex, question of whether a Methodist Church Minister was an employee or an office holder

In 2003 Ms Preston (at that time known as Moore) was admitted to full connexion (ie Ordained) in the Methodist Church.  She was then stationed at the Taunton Circuit as a probationer and, in November 2005, she accepted an invitation to become the Superintendent Minister (ie senior Minister) in the Redruth Circuit of the Methodist Church. Following a contentious reorganisation of the Circuit in 2009 she resigned and brought a claim against the Church in an employment tribunal alleging Constructive Unfair Dismissal.

Under section 94 of the Employment Rights Act 1996 only an employee can bring a claim for unfair dismissal and Section 230(1)  of the Act defines an employee as someone who has entered into or works under a contract of service or apprenticeship.  In this case the Methodist Church claimed that Ms Preston was not an Employee but was an "office holder" and therefore the Employment Tribunal had to decide as a preliminary issue whether Ms Preston was an employee or not.  The Tribunal held that she was not am Employee but the EAT in [2010] UKEAT 0219_10_2411  and the Court of Appeal in [2011] EWCA Civ 1581 held that she was an Employee. The case then came before the Supreme Court which decided that both the EAT and the Court of Appeal were wrong and the Employment Tribunal had been right all along, which no doubt has provided a degree of quiet satisfaction to the Employment Judge concerned.  However the fact that the case has gone all the way up to the Supreme Court indicates that the question involved is not as simple as might have been expected.

As  the Supreme Court itself noted in the past it was basically assumed that a Minister of |Religion was not an Employee for the purposes of employment Law but was an Office Holder however more modern authorities, in particular Percy v. Church of Scotland [2005] UKHL 73  have made it clear that the question whether a religious minister serves under an employment contract or is an Office Holder is a matter of fact which can differ depending on the particular Constitution of the Religious Organisation itself and the nature of the religious post being held. 

The constitution and standing orders of the Methodist Church showed that
(1) A minister’s engagement is incapable of being analysed in terms of contractual formation. Neither admission to full connection nor ordination are themselves contracts.
(2) A minister’s duties thereafter are not consensual. They depend on the unilateral decisions of the Methodist Conference. 

(3) The stipend and manse are due to a minister by virtue only of admission into full connection or ordination, and while a minister remains in full connection and in active life, these benefits continue even in the event of sickness or injury.
(4) The disciplinary rights under the Church’s Deed of Union, which determine the way a minister may be removed, are the same for ordinary members as well as ministers.
(5) The relationship between the Church and the minister is only terminable by the Conference or its Stationing Committee or by a disciplinary committee, and there is no unilateral right to resign, even on notice.

The Ministry described in the constitution and standing orders was a vocation, by which candidates submitted themselves to the discipline of the Church for life. A minister’s rights and duties arose from their status in the Church’s constitution and not from any contract. The relevant relationship was between the minister and the Methodist Conference, and the Conference could move a minister from one circuit to another. Ms Preston was serving as a minister at Redruth pursuant to the life-long relationship into which she had already entered when she was ordained and therefore she could be moved from Redruth or her post abolished without that giving grounds for a claim for unfair dismissal.

The case therefore makes it clear that the question whether a Religious Minister is or is not an employee is an extremely fact based one.  On the basis of the decision it seems clear that Catholic, Orthodox or Anglican Diocesan Priests are not Employees though they might be if they were employed as Chaplains by, for example the NHS. For other religions with a much more decentralised structure such a many Free Churches, Synagogues or Mosques it is quite possible that their religious Ministers could be employees. No doubt the point will be argued out again in another Tribunal before too long.

Call the Midwife I want an Abortion ! - 2

As a follow up to my post on 7th march 2012 regarding the case of the Scottish Midwifes who did not want to supervise Abortions the earlier decision has now been overuled and their right to conscientious objection recognised in Doogan & Anor v NHS Greater Glasgow & Clyde Health Board [2013] ScotCS CSIH_36  

This a unanimous decision by three Judges of the Inner House of the Court of Session  (equivalent to the English Court of Appeal) and recognises in clear terms that the Conscientious Objection clause in s4 Abortion Act 1967 allows Medical staff to refuse to participate in ALL aspects of Abortion "treatment".

The Court rejected the Hospitals suggestion that s4 only covered participation in the immediate act of Abortion  and also rejected arguments based on inconvenience to the Hospital.  The Court recognised that Abortion is a uniquely controversial aspect of Medical practice and that the right of Conscientious Objection is "a right" which Hospitals have to accomodate regardless of any managerial inconvenience it may cause.

This covers a point I have been involved in as Director of the Thomas More Legal Centre where I have had to protect Nurses being pressurised to participate in Abortion especially the administration of Abortion inducing Drugs. Frequently Hospitals have suggested that s4 only applied to the actual giving of the Drugs but did not cover other aspects of Nursing work.  This Judgment vindicates the Nurses I have represented who have refused to participate in any aspect of Abortion "treatment"

Interestingly the Court also endorsed a South African Court decision Christian Education SA v Minister of Education (2001) 9 BHRC53 where the Judge had said

"believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law. "

This case could therefore become an important decision in relation to issues of Religious Freedom extending beyond Abortion"

I am also pleased that the Judgment agreed with a criticism I had made of the earlier decision in my Blog last year when I said

"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."

In para 33 of the Judgment the court makes clear that even professional guidelines can be legally wrong and cannot overule statute, it says (my emphasis)

" Great respect should be given to the advice provided hitherto by the professional bodies, but prior practice does not necessarily dictate interpretation. Moreover, when the subject of the advice concerns a matter of law, there is always the possibility that the advice from the professional body is incorrect. .......It also proceeds on the basis that a midwife has a duty to be non-judgmental and that to be selective is unacceptable, but this ignores the fact that the Act allows a degree of selectivity to those with a conscientious objection"

Even though the Judgment is from a Scottish Court and Scotland is a different jurisdiction to England and Wales the judgment will apply in England and Wales.  The Abortion Act 1967 applies in England, Wales and Scotland (but not in Northern Ireland) and wherever Scottish Courts have adjudicated on such "cross border" legislation their decisions have been accepted without question in England and Wales and vice versa. 

The Inner House of the Court of Session is equivalent in status to the Court of Appeal and therefore this case will be treated south of the border on exactly the same basis as if it had been a decision of the Court of Appeal.In the judgment it is noticeable that much of the case law referred to was English but was treated as binding in Scotland because the Scottish Court was dealing with the same piece of legislation as the English Courts

Free Speech Anyone ? - Not in England or Canada Apparently

In the past couple of weeks there have been two worrying cases in England and in Canada which seem to demonstrate an increasing intolerance on the part of Public Bodies coupled with a willingness by the Courts to side step Free Speech guarantees in order to prevent he expression of views which "might" be offensive.

In Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) the High Court in England has upheld a decision on the Part of Transport for London to Ban an Advertisement which might be considered "offensive" to Gay People, whilst in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 (CanLII) the Supreme Court of Canada has upheld a ruling that a Flyer put out by an individual could be describes as "Hate Speech" even if what it said was true.  In both cases the Courts made their decisions despite Human Right protections for Freedom of Speech namely  Section 2 of the Canadian Charter of Rights and Freedoms and Article 10 of the European Convention on Human Rights.

In the TfL case Core Issues Trust wanted to put an advert on London Buses which read "NOT GAY! EX-GAY, POST-GAY AND PROUD. GET OVER IT!” which was a response to an earlier series of Adverts on London Buses which had read "SOME PEOPLE ARE GAY GET OVER IT".  TfL however refused to permit the "Not Gay" ad despite having run the earlier "Some People are  Gay" ad 

Core Issues Trust brought an application for judicial review claiming that this decision was irrational and breached their rights under Article 9 (freedom of religion and belief) and Article 10 (freedom of expression), read with Article 14 (anti-discrimination).

Mrs Justice Lang held that:

• TfL’s decision-making process was procedurally unfair, in breach of its own procedures, and demonstrated a failure to consider the relevant issues.

• Article 10(1) ECHR, which protects the right to freedom of expression, was engaged. TfL’s Advertising Policy was a justified and proportionate restriction on the right to freedom of expression. TfL’s decision to refuse to display the Trust’s advertisement was also justified and proportionate, in furtherance of the legitimate aim of protecting the rights of others. Therefore the refusal was not a breach of the Trust’s rights under Article 10(1).

• The fact that TfL had applied its Advertising Policy inconsistently (by banning the Core Issues Trust advert, but not the Stonewall advert or the earlier British Humanist Association ‘there’s probably no God’ bus adverts, which were both “highly offensive“) was outweighed by the countervailing factors against allowing the advertisement to run, because the advertisement would cause grave offence to those who are gay and was liable to interfere with the right to respect for their private and family life under Article 8

The logic of this decision is highly worrying in particular the idea that an advertisement on the side of a bus can in any respect be considered as contrary to anyone's Right to respect for private and family life.  In that respect in particular the decision is frankly perverse.  Equally worrying is the suggestion by the Judge that TfL should not merely have banned this advert but should also have banned the earlier pro-gay and pro-atheism adverts shows an unwillingness to really accept the logic of Free Speech.  Free Speech is not there merely to allow the expression of innocuous vacuities, it is there to protect the free expression of different often virulently different opinions.  

Similarly in Canada in the Whatcott case there seems to have been a lamentable lack of understanding of the real concept of Free Speech as it is (supposedly) protected under Section 2 of the Canadian Charter

Mr Whatcott had been distributing Flyers attacking what he saw as the "Gay Agenda" in the Schools of Saskatchewan and indeed Canada (samples of his Flyers are annexed to the end of the Supreme Court Judgment ) and relied in many respects on the accuracy of what he said and the protection of s2 of the Canadian Charter.

In a particularly worrying section of the Judgment the Supreme Court of Canada says

"140:  not all truthful statements must be free from restriction.  Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech."

So with the joint decision that nothing that can be published should be subjectively "offensive " not even if it is true is it perhaps legitimate to wonder whether it might be more honest for both Britain and Canada to repeal their Human Rights Act/Charter and admit that frankly neither country believes in Freedom of Speech any longer.  There are views that are so heretical that they cannot be expressed.  Those who tried Galileo would no doubt approve ! 

Arrest the (Ex Pope) ? Here we go Again

With the imminent retirement of Pope Benedict the "Usual Suspects" have been lining up to allege his Guilt in alleged "Crimes Against Humanity" and the possibility of a retired Pope being arrested.  This is a subject I have Blogged about in the past and in order to avoid simply repeating myself I refer those interested to my earlier Blogs

15 September 2011 Put the Pope in the Dock - 2

Monday, 26 July 2010 A World-wide Criminal Conspiracy ?

Friday, 9 April 2010 Put the pope in the dock ?

Monday, 5 July 2010 Doe v Holy See - Not as Important as it appears



Please all Note that "Crimes Against Humanity" are defined in International Law under Article 7 of the Rome Statute which defines "Crimes against Humanity" as follows (my emphasis)
"For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack"

As I have previously pointed out even the worst allegations against Pope Benedict or the Church do not reach the level of being an "attack directed against any civilian population" 
 
As  I said last year
Q; Is the Church, the Vatican or the Pope above the law ?

A;   No All three are answerable to National or International law. However just as they are not above the Law they should not be treated as below the law or not deserving of the normal rules and protections of the law. Therefore critics who accuse the Church, the Pope or the Vatican of crimes should have to justify their criticisms by applying normal legal rules

Papal Conclave

For those who may be interested in the legal procedures which will lead to the election of the Next Pope the Catholic Truth Society has made available a Free Download of its excellent Booklet on the subject

http://www.ctsbooks.org/FileDepository/products/imports-2013/Conclave_Mgr_Charles_Burns_EX48.pdf

Well worth a read and congratulations to CTS for providing this useful information without charge

Heafield v Times Newspapers - Religious Harassment

In the case of Heafield v Times Newspaper Limited [2013] UKEAT 1305_12_1701 the Employment Appeal Tribunal had to consider whether there had been Religious Harassment contrary to Reg 5 of the Employment Equality (Religion or Belief) Regulations 2003 

 (1) For the purposes of these Regulations, a person (“A”) subjects another person (“B”) to harassment where, on grounds of religion or belief, A engages in unwanted conduct which has the purpose or effect of -
(a) violating B’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive  environment for B.

(Thus regulation has now been replaced by s26 Equality Act 2010) 

(1) A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to (Religion or Belief), and
(b) the conduct has the purpose or effect of—
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

The facts of the case were that Mr Heathfield was a casual sub-editor on the Times newspaper and is a Roman Catholic.  He was working at the Times during the visit to the United Kingdom of the Pope in 2010. 

One evening the Times was preparing a story about the Pope and there was some delay. One of the editors in the newsroom shouted across to the senior production executives “can anyone tell what’s happening to the f***ing Pope ?”.  When there was no response he repeated the question more loudly.  The Appellant was upset and offended what he heard.  He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief.

The Times claimed that the phrase "the ** Pope" referred to the subject of the Article and was a common way of referring to articles by their subject matter.  The Tribunal held that the remark was not directed at Mr Heathfield and in the context was not said  "on grounds of religion or belief" therefore the claim was not made out.

Very much a decision on its own specific facts this case does demonstrate the difficulties of making out a claim of Harassment based simply on general anti-religious comments in the workplace but which are not specifically aimed at any individual