Welcome

Featured

Law & Religion UK is intended as a forum for academically-rigorous exploration of the interactions between law and religion, together with the associated human rights issues. We welcome pertinent guest posts and comments on current developments that reflect the views and opinions of their respective authors and meet the General Conditions applying to the site. Those that do not meet these criteria or which are otherwise unidentifiable are unlikely to be published

This site uses cookies and by continuing to browse the site you agree to their use.  Find out more here.

Frank Cranmer and David Pocklington

 

© Copyright in individual posts is reserved to their authors.

Australia: Christian Youth Camp liable for declining booking from gay support group

The non-discriminatory provision of services gives rise to disputes far beyond the UK and Europe. Neil J Foster, Associate Professor at the Law School and Lecturer in Law and Religion, University of Newcastle, New South Wales, has kindly provided the following guest post on a recent case in Victoria.

Introduction

The Victorian Court of Appeal has handed down an important and lengthy judgment on appeal from a decision fining a Christian youth camping organisation and one of its officers for declining a booking  from a homosexual support group. In Christian Youth Camps Limited & Ors v Cobaw Community Health Service Limited & Ors [2014] VSCA 75 (16 April 2014) the court, by a 2-1 majority, said that the organization CYC was liable; but by a different 2-1 majority,  ruled that the individual who had declined the booking, Mr Rowe, was not liable.

Background facts

The complainant organisation, Cobaw, runs a project called “WayOut”, designed to provide support and suicide prevention services to “same sex attracted young people”. The coordinator of the project approached CYC (a camping organisation connected with the Christian Brethren denomination) to inquire about making a booking at a Phillip Island campsite that was generally made available to community groups. Mr Rowe, to whom she spoke, informed her that the organisation would not be happy about making a booking for a group that encouraged a homosexual “lifestyle”, as he later put it.

There was some factual dispute about what was said in the telephone conversation. However, in the end the issues were fairly clear. There had been a refusal to proceed with a booking; the reason for the refusal was connected with the CYC’s view of the philosophy of support for homosexuality as a valid expression of human sexuality; their opposition to this view was a result of what was seen by the CYC to be required by the Scriptures. Despite these things, the Tribunal (constituted by Judge Hampel of the Victorian County Court), ruled against the CYC and Mr Rowe, and ordered that they had unlawfully discriminated and should be jointly liable to pay a fine of $5000.

The primary liability imposed was under ss 42(1)(a) and (c), and s 49, of the Equal Opportunity Act 1995 (Vic) (“EO Act 1995”). These provisions prohibited discrimination on certain grounds (among which were same sex sexual orientation, and personal association with persons of same sex sexual orientation), in the areas of “services”, in “other detriments”, and in accommodation. But the Tribunal said that it also had to take into account the Charter of Human Rights and Responsibilities Act 2006 (Vic), which in effect is a general “Bill of Rights” for Victoria. The Charter contains a general prohibition on discrimination, in s 8; importantly, it also contains a right to freedom of religion and religious practice in s 14, and a right to freedom of expression in s 15.

The EO Act 1995 contained two exemptions based on religion. Section 75(2) provided:

“(2) Nothing in Part 3 applies to anything done by a body established for religious purposes that –

(a) conforms with the doctrines of the religion; or

(b) is necessary to avoid injury to the religious sensitivities of people of the religion”.

 And s 77 provided:

“Nothing in Part 3 applies to discrimination by a person against another person if the  discrimination is necessary for the first person to comply with the person’s genuine religious beliefs or principles”.

The Tribunal held, however, that neither of these provisions assisted either the CYC or Mr Rowe.

Issues on appeal

The main issues that the Court of Appeal dealt with can be summarised as follows:

1. Was the Victorian Charter relevant to the case?

2. Was the relevant refusal discriminatory on the basis of sexual orientation of the participants, or could it be seen as based on the support that the weekend was to offer for homosexual activity?

3. Was CYC alone liable under the Act, or were both CYC and Mr Rowe potentially liable?

4. Could CYC rely on the s 75 defence applying to a “body established for religious purposes”?

5. Could Mr Rowe rely on the s 77 defence on the basis of the necessity to comply with his “genuine religious beliefs or principles”?

6. Could CYC as an incorporated body rely on the s 77 defence?

1. Application of the Charter

The Tribunal member, Judge Hampel, had ruled that the Charter was relevant, even though it had commenced on 1 Jan 2008 and the events at issue here occurred before then. Maxwell P ruled that this was a mistake; while the Charter required courts dealing with issues that arose after 1 Jan 2008 to interpret legislation passed before that date in accordance with its principles, it was not fully retrospective. Matters that had taken place before its commencement should be dealt with under pre-Charter law: see paras [176]-[179]. Redlich JA at [509] agreed on this point; Neave JA should probably be seen as impliedly agreeing, as she made no specific comment on the issue.

2. Discrimination based on orientation or behaviour?

CYC argued that the decision not to accept the booking from Cobaw was not based on the “sexual orientation” of the participants, but upon the advocacy of homosexual activity which the event would involve- see eg the summary at [52]. This argument was rejected by Maxwell P, who supported comments that had been made by the Tribunal which were to the effect that sexual orientation is “part of a person’s being or identity” and that:

To distinguish between an aspect of a person’s identity, and conduct which accepts that aspect of identity, or encourages people to see that part of identity as normal, or part of the natural and healthy range of human identities, is to deny the right to enjoyment and acceptance of identity.

In essence, his Honour seems to be saying that to criticise homosexual sexual activity is to attack those people who identify as homosexual. In particular the following quote from the UK Supreme Court decision in Bull & Bull v Hall & Preddy [2014] 1 WLR 3741 was supported, where Lady Hale said:

Sexual orientation is a core component of a person’s identity which requires fulfilment through relationships with others of the same orientation.

This view, that decisions made on the basis of same-sex sexual activity, or support for such, are in effect decisions that discriminate against persons who identify as homosexual, seems to be impliedly supported by Neave JA (who simply says at one point that, apart from the question of personal liability, she dismissed the appeal for “substantially the same reasons” as the President- see [360]; and by Redlich JA. His Honour gave more detailed consideration to the issues- see paras [442]-[447]- but essentially took the same position put forward by Maxwell P that “sexual orientation [is] inextricably interwoven with a person’s identity” (at [442]). His Honour then went on to consider a Canadian decision holding that a printing company was guilty of sexual orientation discrimination when refusing to print leaflets which were “promoting the causes of” homosexual persons.

[446]… Efforts to promote an understanding and respect for those possessing such a characteristic should not be regarded as separate from the characteristic itself.  To draw such a distinction was inconsistent with the prohibition against discrimination under the Code.

As will be noted later, Redlich JA also relied heavily on other aspects of the same decision in finding that in fact CYC and Mr Rowe could rely on the s 77 defence. But on this issue, of whether there had been discrimination or not, his Honour agreed with the other members of the Court.

In the end, then, all members of the Court of Appeal in Cobaw seem to take the view that a refusal to support an activity providing support for homosexual sexual activity, is the same as discrimination against homosexual persons. The view that sexual “orientation” is a fundamental part of human “identity”, and the view that this must then be allowed expression in sexual activity, seems to be accepted.

3. Institutional or individual liability?

The third major issue in the decision was whether CYC alone, or both Mr Rowe and CYC, should be held liable for whatever discrimination had occurred.

This is an issue that took up a large part of the judgments in the Court, and it is a fascinating legal question about how legislation applying to corporate bodies should be viewed. Given that the focus of my immediate interest in this note, however, is the law and religion question, I will deal with it briefly here.

To sum up, Maxwell P takes the view that the liability of a corporation under the legislation is “direct”, based on the actions of officers and employees of the corporation whose actions are deemed, under a relevant “attribution rule”, to be those of the company. His Honour says that the provision of the legislation headed “vicarious liability,” s 102 of the EO Act 1995, is not dealing with these standard cases of employees discriminating in the course of carrying out their normal duties. He then also comes to the view that, since corporations are “directly” liable for the actions of officers or employees, this means that the legislation does not intend to also make those individuals personally liable. On this basis, his Honour overturned the Tribunal’s finding against Mr Rowe, while upholding the liability of CYC.

By contrast, both the other members of the Court find that each of CYC and Mr Rowe can be held jointly and severally liable for discrimination. Neave JA notes that the term “vicarious liability”, used in the heading to s 102, does not necessarily have to have all the implications of the common law doctrine of vicarious liability. Even if, as seems plausible, a corporation can be “directly” liable for breach of the EO Act 1995 (see [378]), this does not automatically mean that the employee whose actions are deemed to create direct liability for the company, will then be excused- see [371]. With respect to the views of Maxwell P, it seems to me that Neave JA is correct at this point. The President has moved too quickly from the imputation of direct liability to the company, to the view that the employee should therefore be immune.

Neave JA then also supported this view from her consideration of s 102, the “vicarious liability” provision. As her Honour noted, by reference to academic commentary, the term “vicarious liability” is often used loosely in anti-­discrimination legislation, to refer to different forms of “attributed liability”. Hence there is no need to assume that the Act uses the term only in situations where the corporate employer would be otherwise innocent of wrongdoing, as the common law usage would imply.

Redlich JA agreed with Neave JA generally on this issue, holding that both CYC and Mr Rowe could be held liable for any discrimination that had occurred. Indeed, it seems that Redlich JA, with respect, analysed the situation best when his Honour said that there was, in effect, no need to search for an “attribution rule” for direct liability for CYC, when s 102 provided the relevant rules-­ see paras [456]-­[457].

The result is that there is a 2-­1 majority in the Court of Appeal judgment in favour of the proposition that both the company, and the employee who commits the relevant direct act, can be held liable for discrimination. As we will see below, however, since one of those in favour of this view (Redlich JA) was not in favour of the final order which was made, it could be argued that the precedential status of this proposition is unclear. My own view, for what it is worth, is that as a matter of law the view of Neave JA and Redlich JA is to be preferred.

4. Could CYC rely on the s 75 defence applying to a “body established for religious purposes”?

While both parties could be potentially held liable for discrimination, only CYC could rely on the s 75 defence, which applied to “a body established for religious purposes”. (The word “body” clearly implied a corporate entity of some sort, not an individual.)

The Tribunal had ruled that CYC could not rely on the s 75 defence for a number of reasons: that it was not a body “established for religious purposes”, and in any event that the refusal of accommodation did not “conform with the doctrines” of any relevant religion, nor was it necessary to “avoid injury to the religious sensitivities” of believers. In effect, for similar reasons, the Court of Appeal agreed. In my view this is one of the most problematic aspects of the decision. It is also the feature of the decision that is likely to have the most impact in other jurisdictions like NSW, all of whom have an equivalent of s 75 as a defence.

(a) Was CYC a “body established for religious purposes”?

Maxwell P agreed with the decision of Judge Hampel that CYC was not such a body. There is a long discussion and review of the evidence at paras [199]-­[254]. Features which pointed to the “religious purposes” of CYC were its establishment by the Brethren denomination, the fact that it was required to operate “in accordance with the fundamental beliefs and doctrines of the Christian Brethren”, that it had to aim to create an “obviously Christian” atmosphere, that its provision of camping facilities was to provide “an opportunity to  communicate the Christian faith”, that those who visited the campsites should “experience Christian life and values”, and that it had power to advance to the Trustees of the Brethren church money for “charitable” purposes-­ see paras [204]-­[205]. Members of the Board of CYC were to subscribe to the Brethren declaration of faith- ­[206].

On the other hand, Maxwell P regarded a number of other features of the way that CYC operated as counting against the body being one that was operated “for religious purposes”: advertising on the website and brochures did not contain any explicit reference to Christianity; the site was regularly booked by secular groups; there was no prohibition of any particular type of activity offered on their advertising, and camps were not required to have any Christian content (even though Christian groups did also occasionally use the site.)

The President cited at length from a judgment of Dixon J in an old case dealing with a testamentary bequest, Roman Catholic Archbishop of Melbourne v Lawlor (1934) 51 CLR 1, where his Honour said that to establish the charitable category of a trust for religious purposes, the actual activities themselves must be “religious”. From the examples given by Dixon J, this meant “directly” religious-­spiritual teaching, support of clergy or church buildings or gifts to religious societies. Undertaking a “secular” activity could not be a “religious” purpose, even if motivated by religious reasons-­ [231]-­[232].

Maxwell P distinguished the decision of the High Court in an important recent decision, Federal Commissioner of Taxation v Word Investments (2008) 236 CLR 204, which had held that a body which was itself clearly set up for religious purposes (Bible translation in that case) could still be regarded as “charitable” even though it engaged in secular commercial enterprises to provide funding for those religious purposes. The implication seems to be that if the Christian Brethren church had directly run the camping activities, rather than setting up CYC as a separate organisation, it would have been able to rely on s 75(2).

With respect, it seems as though his Honour is very much relying on a narrow view of what “religion” requires in saying that CYC was not established for “religious purposes”. At [246] he characterises the “very purpose for which CYC exists” as “the commercial activity of making campsite accommodation available to the public for hire”. Yet that is not what CYC’s founding documents say. Of the 10 substantive objects, set out in para [205], four contain an explicit reference to CYC’s religious goals. Maxwell P acknowledges that these exist but still concludes that the main activity is a secular one, and suggests that only if CYC were offering “avowedly religious” camps could it have been described as having religious purposes-­ [249].

On the question as to whether freedom of religion should receive a “broad” or “narrow” interpretation, see also the earlier comments of Maxwell P at [180]-­[188]. On the one hand, his Honour suggests that current High Court Chief Justice, French J, (as he then was) got it wrong in the earlier decision of Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 by giving a broad reading to a “freedom of speech” defence in the RDA. But on the other hand he says that the exemptions in ss 75-­77 should not be “read down” and that neither one of the “co-­existing rights” (that is, freedom from discrimination or freedom  of religion) should be “privileged over the other”-­ at [188]. With respect, while there is lip service paid to the equal status of the rights concerned, it is hard to avoid the conclusion that indeed the discrimination right is being given a much broader reading than that of freedom of religion.

Neave JA seems to impliedly support Maxwell P’s comments on the question of whether CYC is a body established for religious purposes (see [360] where her Honour states in effect that where she makes no other comment on issues, she agrees with the President.) Redlich JA at [439] point (4) also indicates his agreement that CYC was not a “religious body established for religious purposes” (although it should be noted that the first occurrence of the word “religious” in that phrase is not to be found in s 75(2).) With respect, his Honour later makes a number of important points about s 77 (noted below) which seem to me to imply that he ought perhaps to have been more willing to revisit the question of whether CYC was a body “established for religious purposes”.

The result of this unanimity on this point in the decision, if followed elsewhere, seems to be that even a body with explicitly faith-­driven objects may be found to not be a body “established for religious purposes” if it engages in a wide range of community services which do not explicitly require a faith commitment from the recipients. It may be queried whether this is a good policy outcome. Well-known service bodies such as the Salvation Army or St Vincent de Paul offer services to members of the public without inquiring as to their faith stances. Is it really the case that these bodies cannot be said to be established for “religious purposes”? They would presumably argue that Jesus’ teaching in the parable of the Good Samaritan, and a range of other teaching in the Bible, makes “care for widows and orphans” and other community activities a “religious purpose” for those who are committed to Christ.

If a distinction between these bodies, and groups like the CYC, is sought in the fact that CYC charged commercial rates for their services, this seems to be committing the error that Redlich JA points out later in his Honour’s discussion of s 77, of assuming that commercial involvement and religious commitment are incompatible. Does the fact that a Salvation Army fundraiser may charge for sausage sandwiches really preclude them from being a body “established for religious purposes”? Nevertheless, this outcome seems arguable when this aspect of the Cobaw decision is taken into account.

(b) If so, was the refusal of accommodation justified by its doctrines or the sensitivities of believers?

Despite finding that CYC was not entitled to rely on s 75 defences, Maxwell P went on to consider whether, if it were, it could have justified the refusal of the booking on doctrinal or other grounds under s 75(2). Yet again, his Honour operated on a narrow view of “religious activity” which virtually excluded anything except church services and bible studies. Even if CYC had been a religious body, the doctrinal defences, his Honour held, could not apply to “secular” activities. In para [269] CYC’s decision to “voluntarily enter the market for accommodation services” meant that it had to behave in a way that did not allow any consideration of “doctrinal” issues.

In case this was in error, however, his Honour considered whether there would have been any clash with doctrine. He accepted the reasoning of Judge Hampel in the Tribunal, who had adopted the submission of a theological expert that “doctrines” of the Christian faith were to be confined to matters dealt with in the historic Creeds, none of which mentioned sexual relationships-­ see [276]-­[277].

His Honour then further went on to consider what result would have followed were he to accept that views about the exclusivity of sexual relationships to marriage, and the nature of marriage as between a man and a woman, were in fact “doctrines”. He noted that these views functioned as moral guidelines for those within the church, and that no doctrine of Scripture required interference with those outside the church who chose to behave otherwise-­ see [284]. Hence in his Honour’s view a refusal of accommodation cannot have been “required” by Christian doctrine. On this point he held that “conforms to” doctrine must mean that there is “no alternative” but to act in this way-­ [287]. Indeed, his Honour went on to helpfully explain to the CYC what measures they should have taken if they were serious about this doctrine, such as warning guests that sexual activity outside marriage should not take place on the campsite-­ see [290].

There are a number of serious problems with this whole passage of the judgment, in my view. One is that the question of what is a “doctrine” is being resolved by a comparison of expert evidence by a Judge who has no real familiarity with the faith concerned. Can it really be Parliament’s intention that judges of secular courts make a decision as to what is a “core” doctrine or not of a particular faith?

In addition, the view that action in “conformity” with doctrine must be “required” or “compulsory” seems far too narrow. This very view was recently decisively rejected by the European Court of Human Rights in the case of Eweida v United Kingdom [2013] ECHR 37 (15 January 2013). There the action of British Airways in ordering its staff member not to display a cross was at one stage defended on the basis that wearing a cross was not “required” by Christian doctrine. The ECHR in considering a claim under the freedom of religion provision in art 9 of the European Convention on Human Rights ruled that it was not necessary to show a breach of religious freedom that the action in question be “compulsory”. At [82] the Court commented:

In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of  worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question (emphasis added).

In that case the wearing of a cross, while not a “duty”, was clearly a “manifestation” of religious commitment. While the language of s 75(2) is not the same as that of art 9, a similar approach would seem to be desirable. (And it should be noted that Maxwell P accepted that international human rights jurisprudence on freedom of religion was, while not binding, certainly a relevant source to which Australian courts should look-­ see [192]-­[198].)

The other point that should be noted is that Maxwell P’s discussion of Christian doctrine not requiring the “shunning” of non-­Christian persons who do not conform to it (which is clearly correct), fails to deal with the question whether an organisation can be seen to be providing support for a particular viewpoint which has been announced when a booking is made. This point was picked up by Redlich JA in his discussion of s 77 (see below), and is also applicable to the question whether providing a booking here would have involved the CYC providing encouragement and a platform for teaching which they perceived as contrary to an important part of Christian belief. There is a similar approach taken to the s 75(2)(b) question of an injury to “religious sensibilities”. The fact that previously no inquiry had been made of the sexual practices of those attending the camps was taken to mean that simply allowing homosexual persons to attend was not of itself an interference with religious sensibilities. His Honour failed to consider the issues raised by a clear declaration on the part of the person booking that the aim of the camp included an aim of “normalising” homosexual activity, which the CYC considered sinful.

Since Neave JA agreed with Maxwell P that CYC were not a “religious” body, her Honour did not discuss the possible application of s 75 to the corporation. Redlich JA at [439] point (4) very briefly expressed his agreement with Maxwell P that that, for the purposes of s 75, “the beliefs or principles upon which CYC relied were not ‘doctrines’ of the religion”. It seems his Honour was adopting the very narrow view of “doctrines” as purely stemming from the historic Creeds, although his remark is so brief that one cannot be sure. As will be seen, his Honour later took a broader view of “beliefs” under s 77.

It is perhaps worth noticing at this point the odd fact that the whole Cobaw decision very rarely refers to the fairly similar NSW litigation in OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155 (6 July 2010.) In particular, one of the issues in that case was whether a belief that marriage between a man and a woman was the ideal way for a child to be raised, could be justified as being a “doctrine” of the Wesley Mission. After an initial Tribunal finding to the contrary, the Court of Appeal directed a new hearing, noting that there was a need to consider “all relevant doctrines” of the body concerned. On referral to the Tribunal, it held that the word ‘doctrine’ was broad enough to encompass, not just formal doctrinal pronouncements such as the Nicene Creed, but effectively whatever was commonly taught or advocated  by a body, and included moral as well as religious principles. It may be that the Victorian Court of Appeal considered that this final decision, being one of an administrative tribunal not a superior court, was not binding; but it seems unusual that it was not even noted. Certainly some comments of the NSW Court of Appeal were relevant, and in accordance with the High Court’s directions to intermediate appellate courts in Australia, should have been taken into account unless regarded as “plainly” wrong.

5. Could Mr Rowe rely on the s 77 defence on the basis of the necessity to comply with his “genuine religious beliefs or principles”?

For those judges who considered that Mr Rowe was potentially personally liable, the defence in s 77 required consideration. Maxwell P, while holding that in fact Mr Rowe was not personally liable, also offered his views on the question. (As we will note in a moment, his Honour also held that CYC could not rely on s 77, so in fact his comments here are what we might call doubly “hypothetical” or obiter dicta; but they may of course be influential in other decisions.)

For Maxwell P any possible s 77 defence (which authorises actions by a person where “necessary … to comply with the person’s genuine religious beliefs or principles”) was ruled out for reasons similar to those which his Honour thought would have ruled out the s 75(2) defence applicable to CYC: because it was not “necessary” to refuse a booking for Mr Rowe to comply with his religious beliefs. The rule that sex should only be between a heterosexual married couple was a rule of “private morality” and even on its own terms did not have to be applied to others-­ see [330]. As noted above, this of course ignored the fact that Mr Rowe was being asked to support a message of the “normality” of homosexual activity with which he fundamentally disagreed.

Neave JA’s discussion of the s 77 point is important, because for her Honour s 77 was a live issue, given that Mr Rowe could be personally liable. Her Honour’s judgment warrants careful attention, especially since it has to be said that in my respectful view her Honour has misunderstood some of the UK and European jurisprudence which she refers to in reading the Victorian legislation.

The point that the standard of “necessity” must be objectively, not entirely subjectively, determined seems clearly correct. Her Honour’s view at [425] that the phrase “necessary to comply” means “what a reasonable person would consider necessary for Mr Rowe to comply with his genuine religious belief” sums this up well.

However, there was never any dispute about the content of the relevant Christian teaching, or that Mr Rowe was genuinely motivated by that content. What is unfortunate is that her Honour moves from this issue of the “objectivity” of the relevant necessity, into other more debatable propositions. This can be seen in para [426]. While it is true that “subjectively held religious beliefs of one individual do not always override the human rights of others”, this is not what Lord Walker is referring to in the quote then given from R v Secretary of State for Education and Employment; ex parte Williamson [2005] 2 AC 246 (“Williamson”). Lord Walker’s comment, that “not every act which is in some way motivated or inspired by religious belief is to be regarded as the manifestation of religious belief”, is not concerned with the question of subjectivity or objectivity. His Lordship was discussing the meaning of “manifestation”, and considering whether the fact that some behaviour was “motivated” or “inspired” by belief could always be regarded as a “manifestation” of that belief.

In fact it has to be said that Neave JA’s reliance on Williamson and some older UK and ECHR decisions shows a lack of familiarity with recent European law and religion jurisprudence. For example, her Honour at [428] cites Lord Walker’s comment about the “distinction between the freedom to hold a belief and the freedom to manifest that belief” as playing an “important part” in European and UK cases. That may well have been true until recently. In particular, there were European and UK decisions which came very close to holding the very harsh view that the right to freedom of religion in the employment context, for example, could be perfectly well protected by the fact that an employee whose religious freedom was impaired could leave and find another job.

But since the important decision of the European Court of Human Rights in Eweida and others v The United Kingdom [2013] ECHR 37 (15 January 2013) it has been clear that this is no longer the approach to be followed in Europe in dealing with art 9 of the ECHR. The court commented at [83]:

[I]n cases involving restrictions placed by employers on an employee’s ability to observe religious practice, the Commission held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom (see, for example, Konttinen v. Finland, Commission’s decision of 3 December 1996, Decisions and Reports 87-­A, p. 68;  Stedman v. the United Kingdom, Commission’s decision of 9 April 1997; compare Kosteski v. “the former Yugoslav Republic of Macedonia”, no. 55170/00, § 39, 13 April 2006). However, the Court has not applied a similar approach in respect of employment sanctions imposed on individuals as a result of the exercise by them of other rights protected by the Convention, for example the right to respect for private life under  Article 8; the right to freedom of expression under Article 10; or the negative right, not to join a trade union, under Article 11 (see, for example, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 71, ECHR 1999‑VI; Vogt v. Germany, 26 September 1995, § 44, Series A no. 323; Young, James and Webster v. the United Kingdom, 13 August 1981, §§ 54-­55, Series A no. 44). Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. (emphasis added)

As Julie Maher of the Oxford Human Rights hub has noted:

Eweida was an important turning point in Article 9 jurisprudence, with the Strasbourg Court recognising that an individual’s desire to express their religious belief publicly, beyond the context of church and home, could outweigh the secular interests of an employer. The case stands as an important recognition of the need to attribute a basic weight to individuals’ desires to manifest their religion.

I have taken the time to comment on these recent developments, simply because Neave JA justifiably notes that courts in Australia should be aware of international developments. However, in doing so they need to be aware of the current state of law in these areas.

It has to be said that, while Neave JA does refer to the Eweida decision, her Honour has not captured the complexity of the issues and the important changes in EU jurisprudence signalled by the decision In particular, her Honour’s comment at [433] that it was important to consider whether the discriminatory act arose from a “core feature” of the discriminator’s religious beliefs, is contradicted by the finding of the Eweida court noted previously that the particular behaviour need not be “mandated” by religious belief.

 At [434] her Honour, taking the “narrow” view of religious belief that mainly sees it as applicable to “church services” or “religious rules”, generously accepts that there could be serious issues where a secular law on discrimination:

compels the alleged discriminator to refrain from conduct which is required by their religion (for example participation in religious ceremonies or observance of dietary laws) or to actively participate in an act prohibited by their religion, for example celebrating a marriage between a same sex couple. However, the appropriate balance between religious freedom and freedom from discrimination would be struck by holding that the exemption does not apply in situations where it is not necessary for a person to impose their own religious beliefs upon others, in order to maintain their own religious freedom. (footnote omitted)

There are a number of comments to be made about this somewhat disturbing paragraph. For a start, it seems hard to imagine a circumstance where anti-­discrimination laws would otherwise require someone to not participate in a religious ceremony or observance of a dietary rule. But the rule that her Honour sees as “striking the right balance” has to do with it not being necessary for “a person to impose their own religious beliefs upon others, in order to maintain their own religious freedom”. Presumably her Honour sees the refusal of Mr Rowe here as amounting to such an “imposition”.

Yet to reframe the question in this way seems wrong for two reasons. The first and most obvious is that Mr Rowe was not seeking to “impose” anything on Cobaw. It was Cobaw who were seeking to enter into a contract with CYC through Mr Rowe. Indeed, if either side of the relationship were “imposing” on the other, it was Cobaw who were demanding that CYC make their facilities available to facilitate a camp, whose avowed message of support for the normality of homosexual relationships flew in the face of CYC’s stated commitment to orthodox Christianity.

Second, however, and more importantly, this statement of how the relevant balance should be struck assumes that it is up to the Court of Appeal to do the “striking”. But, as Redlich JA powerfully argues, that is to misunderstand how the legal norms here are spelled out. Yes, there is a need to strike a balance between competing human rights. But it is Parliament which has struck that balance, by spelling out the situations in which a person’s religious commitment may override the law of discrimination. (see below.) Here, however, Neave JA seems to be endeavouring to formulate the appropriate balance herself.

Again, as with the comments of Maxwell P noted previously, there is no attention paid to the imposition upon Mr Rowe of a course of behaviour that supports a view he opposes on religious grounds. That this has been completely forgotten emerges in para [436], where Neave JA regards it as inconsistent of Mr Rowe to have conceded that he would not have refused accommodation to lesbian parents who were attending a school camp of some sort. To say that this “contradicts” his assertion that he regarded the denial of a booking as necessary to comply with his beliefs, is almost incomprehensible. It almost seems that her Honour has decided that, whatever Mr Rowe and CYC say, their “real” reason for refusing the booking was a dislike of homosexual persons. In reality, there is nothing inconsistent in Mr Rowe’s assertion that he would have been happy to accept a booking for a normal school camp, even if he knew there were same sex parents who were part of the group; while being unwilling to accept a booking from a group whose very raison d’etre was the “normalisation” of behaviour seen as contrary to God’s word.

Finally, the comparison that Neave JA finds apt in para [437] is telling. Her Honour concedes that the case of Bull v Hall [2013] UKSC 73, [2014] 1 All ER 919 is “not on all fours” with the Cobaw case. This is an understatement. In the Bull case Christian proprietors of a boarding house had declined double bed accommodation to a same sex couple. A fundamental difference between the UK and the Victorian legislation was that the UK law concerned had no general defence provision applying to individuals, unlike s 77 of the Victorian EO Act. Hence it was not very surprising that boarding house proprietors were found to have unlawfully discriminated.30 When Neave JA says that this case reassures her that s 77 “achieves an appropriate balance” she must, with respect, be wrong; there was no equivalent provision at all at issue in the Bull case. Her Honour’s comment would only be true if s 77 provided no effective protection whatsoever.

By contrast to the decisions of the other members of the Court, Redlich JA considered that not only was s 77 applicable to Mr Rowe, it applied to give him a defence against the claim for discrimination. His Honour’s comments are, in my view, very important for a proper application of a religious freedom defence in Australia.

He commented at [502] that the Tribunal had been wrong to conclude that the s 77 defence did not apply for four reasons:

  • A too-­narrow construction of the defences;
  • An insistence on an “objective” test as to whether the religious beliefs “compelled” action;
  • Holding that commercial activity was an area with limited scope for religious freedom; and
  • Inferences that were drawn about the CYC’s commercial activity.

On the issue of the construction of the defences, Redlich JA noted that the Tribunal had explicitly taken guidance from the Victorian Charter in ruling that it, the Tribunal, needed to strike the appropriate balance between freedom from discrimination and freedom of religion-­ see [510]. In particular, since the defences in ss 75-­77 “impaired the full enjoyment” of a Charter right to non-­discrimination, they should be read very “narrowly”-­ [512]. This, his Honour held, was an error.

It was an error because the EO Act 1995 cannot be said to have only one purpose, as if freedom from discrimination was its sole object. It is Parliament that has set up a system to balance these rights with other important rights, such as religious freedom. It is not up to the Tribunal (or, one may add, a Justice of Appeal) to undertake the balancing process as they see fit. His Honour commented at [515]:

When, as is so obviously the case with s 77, Parliament adopts a compromise in which it balances the principle objectives of the Act with competing objectives, a court will be left with the text as the only safe guide to the more specific purpose.31 Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.

As his Honour said, the Tribunal had adopted an “unworkably narrow interpretation of the exemption in s 77, calculated to frustrate the very purpose of the exemption”-­ see [517].

On the question of the “objective” test as to whether behaviour was “compelled” by religion, Redlich JA noted the inappropriateness of a secular Tribunal or court weighing up moral obligations under a religious set of doctrines or beliefs. Instead, while not arguing for a completely “subjective” test, his Honour said that the subjective beliefs held by the alleged discriminator required at least some consideration-­ [526]. In part his Honour relied on the fact that the provisions of s 77 had actually previously been criticised by a Parliamentary scrutiny body as too easy to satisfy, and that in later legislation, the Equal Opportunity Act 2010, the equivalent provision required discrimination to be “reasonably necessary”. However, his Honour went on in para [533] to note that even a requirement that discrimination be “reasonably necessary” would not be so narrow as the approach to s 77 adopted by the Tribunal in this case.

In particular, his Honour rejected the view that activity in the commercial sphere was somehow not covered by the s 77 defence. Again his Honour criticised the tendency of the Tribunal (and, it should no doubt be implied, his Honour’s colleagues on the Court of Appeal) to give too much attention to international jurisprudence that required the balancing process to be undertaken by judicial or tribunal officers. In particular he noted at [539] that the Strasbourg court in Europe had interpreted the art 9 right there in a narrow way where a person chose to engage in the commercial marketplace such as by employment.

Actually it must be said that, while his Honour’s views about the narrow approach of European and UK courts to these questions at paras [539]-­[540] were correct until recently, the courts since Eweida have adopted a much broader approach, as noted above. Nevertheless, his Honour’s general point about the need for courts to observe the balance struck by Parliament, and not to strike out on a balancing process themselves unless invited to do so by Parliament, seems correct.

Redlich JA then undertakes a careful analysis of the Canadian Brockie case mentioned previously,34 in which he stresses that the outcome of the case was that the court held that there could be the refusal of a service in the commercial sphere “where its use would reasonably be seen to be in conflict with core elements of the belief”-­ see [542] ff.

It is worth noting the facts of Brockie in more detail. The Board of Inquiry there had found Mr Brockie guilty of discrimination because he declined to print leaflets for an organisation whose literature indicated that it “represented [the] interests of ‘gays’ and ‘lesbians’”. The Board ordered that Mr Brockie was to provide printing services to “lesbians and gays and to organizations in existence for their benefit”-­ see para [17] of the appeal decision. In the course of their decision, as noted above, the judges of the Divisional Court ruled that “efforts to promote an understanding and respect for those possessing any specified characteristic should not be regarded as separate from the characteristic itself”-­ see [31].

Mr Brockie argued that to require him to support and promote the cause of homosexuality would require him to behave in a way which conflicted with his Christian beliefs, and would be a breach of his right to freedom of religion under the Canadian Charter – see Brockie, [37]. The Divisional Court impliedly rejected the narrow view that rights to freedom of religion could not operate in the “commercial” sphere, by agreeing that in some circumstances the very broad order of the Board, that Mr Brockie publish whatever the organization requested, would indeed amount to a disproportionate burden on his freedom of religion.

[49] However, the order [of the Board] would also extend to other materials such as brochures or posters with editorial content espousing causes or activities clearly repugnant to the fundamental religious tenets of the printer. The Code prohibits discrimination arising from denial of services because of certain characteristics of the person requesting the services, thereby encouraging equality of treatment in the marketplace. It encourages nothing more. If the order goes beyond this, the order may cease to be rationally connected to the objective of removing discrimination.

The Divisional Court then provided some examples of the distinctions it thought needed to be drawn:

[56] If any particular printing project ordered by Mr. Brockie (or any gay or lesbian person, or organization/entity comprising gay or lesbian persons) contained material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle or ridiculed his religious beliefs, such material might reasonably be held to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs. On the other hand, if the particular printing object contained a directory of goods and services that might be of interest to the gay and lesbian community, that material might reasonably be held not to be in direct conflict with the core elements of Mr. Brockie’s religious beliefs. (emphasis added)

The Board’s order that the specific printing project go ahead was upheld, but it was to be qualified by the addition of extra words:

[59]…Provided that this order shall not require Mr. Brockie or Imaging Excellence to print material of a nature which could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed.

When this aspect of the decision is taken into account, it can be seen that the final order of the Court is more in line with the submissions of CYC than those of Cobaw. Redlich JA noted that Judge Hampel in the Tribunal in Cobaw had found that the aims of the proposed camp included “conduct… which accepted or condoned same sex attraction, or encouraged people to view same sex attraction as normal, or a natural and healthy part of the range of human sexualities”-­ see [443]. In this way requiring the CYC to make their camping facilities available to Cobaw was indeed to “convey a message” that was contrary to CYC’s beliefs (and hence to fall within the area that the Divisional Court in Brockie said would have been going too far and beyond power.)

Redlich JA commented at [544] that, consistently with the outcome in Brockie, s 77 “protects such an obligation when it arises in similar circumstances”. Any judicially created limit which would restrict the operation of s 77 in the commercial sphere would undermine the very balance that Parliament itself has chosen to strike:

[550]….The section does not confine the right to manifest religious beliefs to those areas of activity intimately linked to private religious worship and practice. The legislature intended that it operate in the commercial sphere. The approach of the Strasbourg institutions confining freedom of religion to freedom to believe and to worship is not reflected in the legislative policy of the Act, or in the text of the exemption, which permits a person’s faith to influence them in their conduct in both private and secular and public life (emphasis added)

Redlich JA’s concluding discussion of how s 77 ought to have been applied in the particular circumstances of this case brings together these themes, and clearly demonstrates the error of the Tribunal. His Honour notes that it is not necessary for an activity to be a “religious” one such as a church service or evangelism, for it to be an activity that is motivated by religious belief. While CYC may not have been a body “established for religious purposes”, it was a body with a religious character, and Mr Rowe of course had his personal religious commitments. He was entitled to the benefit of s 77.

In particular his Honour clearly brings out the point made above, that refusing the booking was appropriate once the purpose of the seminar was made known to Mr Rowe. It was reasonable of CYC to offer its services to all without making any particular enquiries about their personal beliefs. But:

[567]….What enlivened the applicants’ obligation to refuse Cobaw the use of the facility was the disclosure of a particular proposed use of the facility for the purpose of discussing and encouraging views repugnant to the religious beliefs of the Christian Brethren. The purpose included raising community awareness as to those views. It was the facilitation of purposes antithetical to their beliefs which compelled them to refuse the facility for that purpose. To the applicants, acceptance of the booking would have made them morally complicit in the message that was to be conveyed at the forum and within the community. (emphasis added)

As his Honour noted at [571], it could hardly be doubted that if told that a seminar to be run at the campsite would be aiming to persuade the attendees to deny the Christian faith, that CYC would have been entitled to decline the booking. The proposed purpose here was seen as just as antithetical to the beliefs of the members of the organisation.

Hence his Honour held that s 77 excused Mr Rowe from liability. He also went on briefly to note that once s 77 operated in relation to an employee whose actions had made the employer liable, then the employer was also not liable-­ see [578].

6. Could CYC as an incorporated body rely on the s 77 defence?

This brings us the final of the major issues in the case: could the corporate body CYC rely on the s 77 defence “directly”? That is, since s 77 applies to a “person”, and since under established principles of interpretation “person” usually includes an incorporated body, could CYC argue that it had relevant “religious beliefs or principles” which were protected?

Maxwell P took the view that the s 77 defence was not applicable at all to a corporate body-­ see [309] ff. His Honour’s main reasons were by reference to the scheme of ss 75-­77, which seemed to distinguish between rights given to “bodies” and those to “persons”. In particular his Honour said that it would be odd if a corporate body could rely on the apparently wider defence in s 77, if it did not satisfy the description of a “body established for religious purposes” under s 75. He conceded that “churches” had been said in European jurisprudence to have “rights of religious freedom”, but disputed that those rights were appropriate for other incorporated bodies-­ see [322].

Neave JA agreed with Maxwell P on this issue-­ see [413]-­[422]. Redlich JA did  not; his Honour noted that corporations are regularly held liable for various “states of mind” attributed from their controllers. While there might be problems in other cases, in this situation all the directors of CYC were required to subscribe to a statement of faith-­ see [479]. The different provisions in s 75 and s 77 operated in different areas and to exclude corporations from s 77 would   produce anomalous results, particularly for small businesses where the defence would be excluded if they decided to adopt a corporate structure for other reasons-­ see [490].

Summary and Preliminary Evaluation

In brief, the result of the decision on the six points noted above, then, was:

  1. Was the Victorian Charter relevant to the case? No, by all members of the Court.
  2. Was the relevant refusal discriminatory on the basis of sexual orientation of the participants, or could it be seen as based on the support that the weekend was to offer for homosexual activity? All members of the Court rejected the distinction. A decision based on activity, or support for the activity, would be seen as a decision based on sexual orientation.
  3. Was CYC alone liable under the Act, or were both CYC and Mr Rowe potentially liable? By a 2-­1 majority (Neave JA & Redlich JA), both CYC and Mr Rowe were potentially liable.
  4. Could CYC rely on the s 75 defence applying to a “body established for religious purposes”? No-­ because (by all members of the Court) it was not established for such purposes. Nor, apparently, was it necessary to decline the booking based on its “doctrines” (although Redlich JA found that it had a defence based on its “beliefs” under s 77).
  5. Could Mr Rowe rely on the s 77 defence on the basis of the necessity to comply with his “genuine religious beliefs or principles”? Neave JA said that the s 77 defence was not made out; Redlich JA that it was. As Maxwell P had ruled that the obligations did not apply to Mr Rowe personally, the decision fining Mr Rowe was overturned, though for two completely different reasons.
  6. Could CYC as an incorporated body rely on the s 77 defence? By a 2-­1 majority (Maxwell P & Neave JA), no-­ a body that did not fall within s 75 could not rely on a general s 77 defence.

The fact that the Court was split in different ways on different issues makes the precedential value of some of its comments problematic. For the purposes of a future court wanting to know what principle of law flows from this case, where different reasons are offered by different members of an appellate court for coming to the same outcome, is it not possible to say that there is any specific ratio of the decision. Kirby J in XYZ v Commonwealth [2006] HCA 25; (2006) 227 ALR 495; (2006) 80 ALJR 1036 at [71] summed up the principle in this way:

the binding rule is to be derived from the legal principles accepted by those members of the Court who, for common reasons, agreed in the Court’s orders

Here there are some propositions in Cobaw for which there is no majority among those Justices who concurred in the final outcome (support for a proposition offered by members of the Court who did not agree in the outcome cannot be aggregated under this principle.) So there is no majority ratio here on the question as to whether under the legislation a corporate body has “direct” liability, or whether its liability is “vicarious” based on the specific statutory version of attributed liability. Of those members of the Court who found CYC liable, Maxwell P favoured direct liability and Neave JA vicarious; since Redlich JA found that CYC was not liable, his Honour’s support for vicarious liability cannot be counted.

However, there do appear to be relevant majorities for the following views:

  • That a corporation cannot rely on the s 77 defence applying to “persons”-­ this view was adopted by Maxwell P and Neave JA, who agreed that CYC were liable.
  • That a body situated similarly to CYC is not a “body established for religious purposes” and hence cannot rely on the s 75 defences-­ a view shared by all members of the Court. Of course it will be necessary to isolate which characteristics of such a body preclude “religious purposes”, but it seems that operating competitively in a commercial marketplace may do so.

o There may, it seems, be majority support for a related issue, which is that a body established for religious purposes needs to find its “doctrines” in official doctrinal statements. However, since as noted above on this issue the Cobaw court seems to ignore previous comments made by the NSW Court of Appeal in OV & OW, it may be that this aspect of the decision would not be binding in a NSW court at least.

  • That the Victorian Charter does not apply to events occurring before its commencement.
  • That discrimination on the basis of sexual orientation occurs when differentiation on the basis of homosexual activity, or support for homosexual activity, takes place.

Of these matters, the third is likely not to be of much continuing relevance, given that the Charter has now been in effect some time. But the first, second and fourth are important propositions likely to have a future impact.

The practical effect of these views on faith-­based organisations in the future may be significant. Some that immediately come to mind are as follows:

  1. That a general freedom of religion defence applying to “persons” does not apply to incorporated bodies seems to be a serious derogation from freedom of religion. Similar issues, of course, are currently being litigated in the United States of America in relation to the possible application of new healthcare initiatives requiring organisations to fund the provision of abortions, and whether those provisions apply equally to commercial entities which may be run on Christian principles.
  2. The very narrow view adopted as to the characteristics that a body has to have before it will be held to be “established for religious purposes” will have an impact on the application of defences similar to s 75 of the previous Victorian Act, which are in place around Australia. While this will clearly be a question of fact to be dealt with on a case by case basis, the fact that a body all of whose board were required to subscribe to a statement of faith, and 40% of whose direct objects made a reference to its desire to act in accordance with faith principles, was found not to be established for such purposes, will be of great concern to similar bodies which operate in the commercial sphere with an aim of showing  Christian love and concern to the community at large.
  3. While it seems consistent with international decisions on the matter such as the Bull v Hall case, it will still be of some concern that a policy based on upholding traditional Christian views about human sexuality, based on behaviour, is being interpreted as amounting to discrimination against the persons involved. But this seems to be something that Christian organisations will need to take into account-­ even if, in the end, they resolve that to be faithful to their principles they need to continue to make decisions as they have done in the past.

Finally, will the Cobaw decision be the last word on these issues? With great respect, it seems to me that there are some important legal errors in the decision that would justify an appeal to the High Court of Australia. Since, as Maxwell P himself notes at [14], this litigation raises novel (for Australia) and inherently difficult issues of the conflict of rights, and since there is a fair degree of uncertainty remaining over some of these important issues even after this decision, it is to be hoped that the High Court would accept the invitation if offered by one or more of the parties.

Neil Foster

Associate Professor, Newcastle Law School Lecturer in Law and Religion

 21 April 2014

The full text of this article, with footnotes is available here.

Composition of the Lords Spiritual

During the Westminster Hall debate Women’s Contribution to the Ordained Ministry (Church of England), 20 Mar 2014 : Vol 577 Col 377WH, the Second Church Estates Commissioner, the right hon. Member for Banbury (Sir Tony Baldry), commented

 “Right hon. and hon. Members have asked about the situation of women in the House of Lords.  This House will not be surprised to learn that I have been discussing that issue with the Leader of the House of Lords and the Leader of the House of Commons. Of course, the position of bishops in the House of Lords—the Lords Spiritual—is that they are Members of the House of Lords. It is therefore a question of who is summoned to Parliament. It is not something that can simply be resolved by a Measure of the General Synod; it will require primary legislation. [But see comments below].

However, I think that it would be fair for me to summarize the position of the Government, as I understand it, thus. In terms of primary legislation, they will seek to facilitate as speedily as possible what the Church of England feels would be most appropriate in these circumstances. I think that discussions are now taking place within the Church of England. I understand that the Lord Bishop of Leicester, who convenes the Lords Spiritual, is in negotiations with various groups to give some thought to how best that can be achieved.

This was followed by a piece in the Church Times on 11 April,Officials look for ways to fast-track women into Lordsalthough it contained no further explanation on the how this might be achieved.  However, a more considered starting point would be the Church’s deliberations in 2011 in anticipation of the House of Lords Reform Bill 2012-13, both in its anticipation of women members of the Lords Spiritual, and equally importantly, the reassessment of the Church’s position in the Upper House. The approach taken by the coalition government is also instructive.

The position of the Church of England on the reform of the House of Lords and the possible directions are contained in its written submission, (GS MISC 1004), to the Joint Committee on the draft House of Lords Reform Bill and the oral evidence of the Most Rev and Rt Hon Rowan Williams, Archbishop of Canterbury to the Joint Committee on 15 November 2011.  In his response to Baroness Young of Hornsey, [Q435], he stated:

“You will notice in our submission that we have taken this on board to the extent of suggesting that Clause 28(4) in the draft Bill should drop, to allow the church the flexibility, when women are allowed to be ordained Bishops, to fast-track, so to speak, the first women in that position on to the Bishops’ Benches.”

The relevant part of the Church’s written submission is in paragraphs 27 and 28, [emphasis in original]

“27. Given the intention expressed in Clause 27 (6) and elsewhere to allow the Church of England to determine its own method of selection for Ordinary Lords Spiritual[1] for each coming parliament in a fully reformed Upper House – and replacements for those that retire or resign mid-term – there is a case for affording the Church the broadest possible choice from among its diocesan bishops at an earlier opportunity than at the end of the two-term transitional process. This would require the removal of Clause 28 (4) and clarification that Clause 28 (1) referred to all diocesan bishops and not simply existing Lords Spiritual.

28. This would enable the Lords Spiritual in the transitional parliaments to be selected from the widest possible pool of those who were diocesan bishops at the time. This could be of particular significance that if the General Synod were to approve the present draft legislation to enable women to become bishops.”

Comment

A number of important principles arose from in the discussions on a reformed Upper House:

- Acceptance by the coalition government of the Church’s sole right to select Lords Spiritual: the White Paper and clause 27 of the Draft Bill place a requirement on the Church of England to make the selection of diocesan bishops to serve as Ordinary Lords Spiritual “in whatever way it considers appropriate”;

- The Church’s acknowledgement that the occupants of  the five “senior sees” inevitably have greater competing outside commitments than other bishops, and in the interests of maximizing the continued effectiveness of the service that the Lords Spiritual offer parliament there may be a case for a greater proportion of the membership of the Bishops‟ Bench to be drawn from the numbers of the other diocesan bishops, [GS 1004, para. 12 and 13];

- The Church’s apparent desire for the ability to select of Lords Spiritual “from the widest possible pool of those who were diocesan bishops at the time, with particular reference to women who become bishops”.

With regard to the Church’s selection of Lords Spiritual, Section 3(6) Church of England Assembly (Powers) Act 1919 provides that

“A measure may relate to any matter concerning the Church of England, and may extend to the amendment or repeal in whole or in part of any Act of Parliament, including this Act:

Provided that a measure shall not make any alteration in the composition or powers or duties of the Ecclesiastical Committee, or in the procedure in Parliament prescribed by section four of this Act.”

When the House of Lords Reform Bill was dropped, we commented that instead of proclaiming Bishops safe, as Clegg drops Lords’ Bill’, the headline in the Church Times should have read ‘Bishops miss opportunity for strategic reorganization’, and looked with interest at the direction that would be given by the new Archbishop. The ordination of women into the episcopate now provides a further opportunity to address the composition and work of the Lords Spiritual – an opportunity for which some of the preparatory work has been undertaken, but one that will surely raise again the representation of the Church of England in the House of Lords.


[1] The Bill envisaged the continuation of the principle within section 5 Bishoprics Act 1878 with the Lords Spiritual consisting of five “Named Lords Spiritual”, i.e. “persons in a named office: (a) Archbishop of Canterbury; (b) Archbishop of York; (c) Bishop of London; (d) Bishop of Durham; or (e) Bishop of Winchester, and the balance comprising “Ordinary Lords Spiritual”.

Sale of “Church Treasures”

Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches

The proposed sale by the PCC of Wootton St Lawrence of the Wootton Helmet, a 15th century Flemish Armet[1], was deferred following a challenge by the Church of England’s Church Buildings Council, (CBC),and was the subject of an appeal to the Court of Arches.  The 2013 consistory court judgment is reviewed here and details and photos of the Armet are in Thomas Del Mar’s Catalogue for its sale in 2010 as a result of the initial court order, here.

The judgment of the Court of Arches was delivered on 14 April 2014, after which Anne Sloman, Chair of the Church Buildings Council made the following statement

“We are delighted that the Court of the Arches has reaffirmed the principle that Treasures from Churches, including those on loan to museums should only sold in exceptional circumstances. This armet is one of an internationally significant collection of funeral monuments which have been lent for many years by parish churches to the Royal Armouries, [the Royal Armouries Museum in Leeds (“RAM”)]. As a church we are the guardians of a very significant part of the nation’s heritage and we are pleased that the judgment has recognized that this is a responsibility we take very seriously.”

The decision was also welcomed by Dr Thom Richardson, the Deputy Master of the Armouries, who said

“The judgment in the Wootton St Lawrence case will hopefully help to close the floodgates for other parishes seeking to turn the armour in their care into cash. When such helmets appear on the art market they are almost universally sold abroad.”

Moving from the hype to the deliberations of the Court, the main points of this important 46-page judgment are summarized below; readers with interests in the sale of “church treasures” will no doubt wish to study the legal arguments in greater detail.

Scope of the faculty jurisdiction

The Court first considered the scope of the faculty jurisdiction in relation to “separation”, where, under various agreements &c, items such as the armet are no longer located within property normally subject to its regulation[2].  “Separation” was considered separately and is discussed below.

In relation to the scope of its jurisdiction, the Court stated [our emphasis],

“26. The armet is an entirely secular object. Whilst it remained in the church it was undoubtedly subject to the faculty jurisdiction, regardless of its ownership by the heirs of Sir Thomas Hooke.

[…]

27. Since 1969 it has not been in any church. When the 1974 and 2010 faculties were granted it was still owned by the heirs of Sir Thomas Hooke. But was it in law still subject to the faculty jurisdiction? And if not, does the obtaining by the churchwardens of a half-share in its ownership in 2012-13 (and prior to the 2013 faculty) change matters?”

and concluded

“33.  . . . . . it would be anomalous (as well as highly regrettable) if the jurisdictional consequence of a faculty sanctioning a loan to a museum depended on ownership of the article loaned . . . . The loan was the subject of a contractual agreement under which both parties had rights and responsibilities. Further, whatever the position under section 5 of the [Care of Churches and Ecclesiastical Jurisdiction Measure 1991], it remained the responsibility of the churchwardens from time to time to check that the bailee was honouring its responsibilities under the loan agreement and whether alternative arrangements needed to be made for the armet, whether by way of different terms for the loan, or loan elsewhere, or even disposal by sale (whether open or restricted). It is this element of continuing custodianship which had the legal effect of retaining the armet within the faculty jurisdiction.

For the future, and whilst such wording will not of itself determine the jurisdiction issue, we strongly recommend that chancellors sanctioning loans, regardless of ownership of the articles concerned, contain clear, express provisions relating to the continuance of the faculty jurisdiction in respect of the article loaned.”

Categories of Disposal

The Court then considered [at para.34] the three categories of disposal under which “Treasures of the Church” might be put up for sale, or loaned, viz.

(a) circumstances which do not involve any change of ownership, such as where the item is placed on long-term loan to a museum, art gallery or diocesan treasury (“disposal by loan”);

(b) where the item is to be sold to a museum, art gallery or (more rarely) diocesan treasury (“disposal by limited sale”);

(c) where the item is to be sold, regardless of who the purchaser is, to whoever will pay the highest price (“disposal by outright sale”).

Referring to a number of earlier judgments[3], the Court advocated that

“where disposal of Church treasures is contemplated, then would-be petitioners and chancellors should apply a sequential approach, considering first disposal by loan, and only where that is inapposite, disposal by limited sale; and only where that is inapposite, disposal by outright sale.”

noting

 “[w]ith one exception … decisions have generally recognised that the interests of public visibility should normally prevail, when the court is considering proposed disposal by sale of articles of local or national distinction.”

The exception to this general approach is Re St Michael and All Angels, Withyham [2011] PTSR 1446 (Chichester consistory court) in which the chancellor permitted the sale of a set of four 14th century Italian paintings that had been on loan to the Leeds Castle Foundation since 1997.  He considered, and rejected, a representation by the CBC that the sale should be restricted to a public institution in Great Britain, stating at para.39

“I am satisfied, for the reasons given by Sotheby‟s, that this might well result in the paintings not achieving the best price possible. As charity trustees, the parochial church council are obliged to realise the full value of any assets to be sold”.

However, in the instant case, the Court of the Arches noted the inconsistency of the proposition in the second sentence, above, in relation to the dictum in Re St Gregory’s, Tredington about possible sale to a museum at an undervalue. Both Counsel drew attention to this inherent misconception: that the court was concerned with the powers of the PCC, since it is the churchwardens who have the legal title to the goods of the church, although they are not charity trustees.

Counsel were agreed that if the faculty authorised a sale only to a museum for the best price that could be obtained from such a museum, that lawfully limited the duty of churchwardens.  The Court added that were it otherwise churchwardens would not be able, pursuant to faculty, to give or sell at an undervalue articles to other churches.

Legal Principles in Disposal Cases

In addressing the proper approach to disposal by sale, the Court drew an analogy with proposals for development with areas designated as Green Belt, which are only permitted where they those that fall within the category of “appropriate development”, [paras. 50 and 51].  In cases deemed as “inappropriate development”, it is necessary to demonstrate “very special circumstances” which “clearly outweigh” the harm caused by the development.

The lower courts have tended to address disposal of church treasures in two stages: first asking whether the circumstances could reasonably be described as “very special”; and if, but only if, they could be described as “very special”, did the question arise whether the very special circumstances clearly outweighed the harm.  This led to definitional concerns as to what were “very special circumstances”, with a distinction drawn between the very special and the commonplace.

This is not the proper approach, and the court stated

“qualitative weight, including the cumulative weight of individual factors, some or all of which may not be specially rare, is all that has to be identified; and the requisite weight is that which is sufficient to outweigh the strong presumption against disposal by sale, [para. 51].”

With this approach, rather than continuing to engage in the semantics of what is “special”, chancellors need merely decide whether the grounds for sale are sufficiently compelling to outweigh the strong presumption against sale. Furthermore,

“Financial need” falling short of “financial emergency” will seldom on its own outweigh the strong presumption against sale; but it can and must be weighed with any other factors favouring such sale. It follows that a critical or emergency situation will carry more weight than more normal pressures on parish finances, but it is neither possible nor desirable to develop criteria for an emergency situation that would put a case into a distinct category, [para. 52].

Separation

Whilst earlier judgments had spoken of “alienation” or “the severance of any meaningful relationship between the article and the church”, the Court expressed its preference for the term “separation” for describing the circumstances in which an article had been housed for a considerable amount of time in some place other than the church.  The Court considered the case law on separation and in its view, in the case of historic articles with a significant past connection with a church or parish, this factor will commonly outweigh any possible argument based on “separation”.

In future cases the Court was of the view that little weight should normally attach to “separation” as a reason for disposal by sale, and it doubted that “separation” would ever, on its own, have sufficient strength to justify sale of a Church treasure.

The proper approach to separation is not a two-stage test, but, as in Withyham, involves looking at the matter in the round in the context of a strong presumption against disposal by sale,

“ …then there may be some circumstances in which “separation” may not be entirely incapable of supporting the case for sale. If, however, there were to be any evidence that petitions for approval of loans were being manufactured as stepping-stones towards disposal by sale, chancellors can be confidently expected to attach even less weight to such manufactured “separation” than might otherwise be the case,.

If, however, there were to be any evidence that petitions for approval of loans were being manufactured as stepping-stones towards disposal by sale, chancellors can be confidently expected to attach even less weight to such manufactured “separation” than might otherwise be the case.” [para. 60]

Grounds for Appeal

Of the five grounds for appeal, the Court accepted two,

Ground 2: The chancellor’s approach to the financial evidence was flawed, [para.64 to 75].

Ground 3: The chancellor’s approach to the question of a historic link between the armet and the parish was flawed, [para.76 to 81]

but rejected three,

Ground 1: Financial need falling short of an emergency does not amount to a ‘special reason’, justifying the grant of a faculty for the sale of a valuable article, either on its own or in circumstances where the article in question has been physically separated from the church because it has been deposited in a museum, [paras. 62 and 63].

Ground 4: The chancellor failed to consider whether if there were to be a sale it should only be to a museum, [paras. 82 to 86].

Ground 5: The chancellor failed to deal with the issue of whether the sale of the armet would be of sufficient financial benefit to the parish as to justify its sale, [paras 87 and 88].

Following previous decisions of the Court[4] in which it was found that a chancellor has erred in law in the exercise of his discretion, it noted that the Court of Arches, on appeal has power to substitute its own discretion, without referring the matter back to the chancellor for redetermination in the light of its decision.  Summing up, the Court stated

“90. Whether one looks to the existence of “special reasons”, or, as we have held to be preferable, one simply looks at the matter in the round to see whether the grounds for sale are sufficiently compelling to outweigh the strong presumption against disposal by any form of sale, we are satisfied that this petition should be dismissed.

The armet is a national asset with historic links to the parish and there is no proven financial case for its sale. Little if any weight should attach to the fact that it has been physically out of the church, and therefore outside the parish, for many years.

91. If the grounds for sale were stronger, then, applying the sequential test, disposal by limited sale, even if necessary at an undervalue, should take precedence over outright sale.

92. With hindsight it is clear that the original proposal to sell the armet was not driven by any urgent or pressing financial situation in the parish; rather the armet was seen as a valuable asset, which could become a source of parish funds. A similar approach seems to have been pursued by the parish in 2013. This court’s decisions, particularly in Tredington and Burton Latimer, show that sales should not be approved on that basis.

93. We appreciate that our decision will cause dismay to the petitioners, who may consider that they are being penalised for the commendable strength of their financial position. It may also seem surprising to many people unfamiliar with ecclesiastical law that the petitioners are not permitted to convert the armet into usable funds. It is our view, however, that the strong presumption against disposal by sale of Church treasures, which we have applied in this case, is both soundly based and generally beneficial in its consequences.

94. In its letter to the CBC of 28 April 2013 RAM stated that:

“[The museum] has been active in helping churches safeguard [arms and armour], partly by taking the objects considered most at risk on loan and substituting fibreglass replicas in the churches. Though displaying the objects to the public has been a consideration in taking them on loan, the safeguarding of the objects themselves has been the museum’s primary concern”.

If the loan to RAM is to continue, we would hope that it might be possible to secure from RAM such a fibreglass replica of the armet. This could then, subject to faculty, be hung in the church above the effigy of Sir Thomas Hooke, thus giving new life to the connection between the armet, the church and the village of Wootton St Lawrence”.



[1] A spiked helmet with a visor.

[2] The Court referred to: In re Escot Church [1979] Fam 125,127 (Exeter consistory court); Re St Nicholas, Chislehurst (unreported, 1999) (Rochester consistory court); and Re St Bartholomew’s, Aldborough [1990] 3 All ER 440  (York consistory court).

[3] Re St Mary the Virgin, Burton Latimer (unreported, 26 October 1995); Re St Martin-in-the-Fields (unreported, 31 October 1972); Re St Nicholas, Porton (unreported, 2002) (Salisbury consistory court). Other cases considered by the court include: Re St Mary, Barton upon Humber [1987] Fam 41, 55E (Lincoln consistory court); Re St Bartholomew’s, Aldborough [1990] 3 All ER 440  (York consistory court); Re Holy Trinity, Batley Carr (unreported, 6 August 1997) (Wakefield consistory court); Re St Peter’s, Draycott [2009] Fam 93; Re St Columba, Warcop (unreported, 21 December 2010) (Carlisle consistory court); Re St Gregory’s, Tredington [1972] Fam 236; Re St Helen’s, Brant Broughton [1974] Fam 16

[4] Tredington at 241B-D, St Martin-in-the-Fields (p.7) and Burton Latimer (p.7).

 

Religion and law round up – 20th April

A week in which the C of E acquired a new, merged, diocese and was trying to come to terms with same-sex marriage for clergy  and our site crashed…

Marriage of CofE clergy to same-sex partners

The Telegraph reported that Canon Jeremy Pemberton, Deputy Senior Chaplain with the United Lincolnshire Hospitals NHS Trust, wed his long-term partner Laurence Cunnington on Saturday 12 April. In addition to the uncertainties on the application of ecclesiastical law which we discussed earlier, here and here, added complications in the case of Mr Pemberton are that his employer is the NHS, not the diocese of Lincoln, that he also has permission to officiate in the Diocese of Southwell and Nottingham, where he is a lay clerk at the Minster and that the See of Southwell and Nottingham is currently vacant, although there is an acting diocesan bishop. Amidst this legal uncertainty it seems incongruous that some of those putting forward both pro- and anti- same-sex marriage points of view are so convinced on how this might be addressed within the existing regime.

(43+1) -3 +1 = 42

On Easter Day, the new Church of England Diocese of West Yorkshire and the Dales, formed from the former Dioceses of Bradford, Ripon & Leeds and Wakefield, begins its existence.[1]  Under section 5 Bishoprics Act 1878 the then Bishop of Ripon and Leeds and Bishop of Wakefield will cease to be members of the House of Lords; but its “Buggin’s turn provisions” will mean that the new Bishop of West Yorkshire and the Dales, the Rt Revd Nick Baines, will not immediately take their place in the Lords, although the CofE’s Parliamentary Unit indicates that this is “likely later in 2014”.

Described as a “mega diocese”, the Diocese of West Yorkshire and the Dales will be the largest in the Church of England[2] and this raises the question of the present relevance of the criteria within the 1878 Act, an issue of growing importance as officials are said to be looking for ways to fast-track women who become bishops into Lords.

How to “do God”

The Daily Mail reports the Department for Communities and Local Government is running a series of seminars entitled How should governments “do” God?. According to a flier seen by the Mail the seminars are intended to help civil servants

“… tailor your policy making to ensure it is responsive to the needs and perspectives of people of faith … The seminar is designed to boost what we are calling “religious literacy” among civil servants. Ministers have stressed the importance of government establishing productive working relationships with faith communities in policy development and implementation, in the UK and overseas”.

It is emphatically not our intention to scoff; on the contrary, the initiative is to be applauded. ”Religion” is an extraordinarily complicated issue and there is no particular reason why an individual civil servant should have any detailed technical knowledge of the subject. But given that religion is so complex and given that secular legislation interacts with religion in so many ways, a little in-service training might help to avoid the unforeseen consequences of what are often perfectly well-intentioned policies, by making civil servants more aware of the possible pitfalls dotted around the religious landscape.

A recent example which, so far as we are aware, remains unresolved, relates to the Gift Aid Small Donations Scheme – a Gift Aid-style repayment of the equivalent of basic-rate tax on cash donations of £20 and below up to a maximum claim of £5,000. The Scheme’s primary intention was to allow religious organisations to reclaim some of the income tax assumed to have been paid on loose cash in the offertory at services. However, it was not until the details of the Scheme had been announced that anyone realised that it could never benefit Orthodox Jewish congregations because (so Frank was assured by the Office of the Chief Rabbi) Orthodox Jews may not carry money on Shabbat and cannot possibly, therefore, make a cash donation at a Sabbath service. Only a civil servant who was an Orthodox Jew could reasonably be expected to have known that.

Journalistic shorthand

Section 1(1) Marriage (Same Sex Couples) Act 2013: Extension of marriage to same sex couples, states that “Marriage of same sex couples is lawful”, i.e. that within the statutory legislation of England and Wales, the term “marriage” now encompasses both same-sex and opposite-sex marriages solemnized within these provisions and those of the Marriage Act 1949, as amended.  Strictly speaking, therefore, the term “same-sex marriage” is incorrect in the context of statute law insofar as it implies that its status is different in law from “opposite-sex marriage”. It is not.

In a similar vein, although the adjectival use of “women” in the context of “women bishops” is not incorrect in law at present, we are aware that it is a source of irritation to some and we likewise attempt to avoid its use wherever possible[3]. However, once the draft Measure and amending Canon receive Royal Assent, the term “women bishops” will be unnecessary since “a man or a woman may be consecrated to the office of bishop” (Canon C2). The remaining problem will then be the style by which women who become Lords Spiritual are addressed.[4]

The Council of Europe on sects

We noted the outcome of the Parliamentary Assembly of the Council of Europe’s deliberations on The protection of minors against excesses of sects. The text as agreed turned out to be much more nuanced and much less muddled than the original draft submitted by the Assembly’s Legal Affairs and Human Rights Committee.

Property rights and the applicability of Hindu law

We also noted the extremely complicated case of Singh v Singh & Anor [2014] EWHC 1060 (Ch), about a property dispute in a Sikh family in England and whether or not the principles of the Mitakshara – the 11th-century legal code which forms the basis of the orthodox system of Hindu and Sikh law that prevails in most of India – applied to the situation.

Our take on it was from the point of view of the potential applicability of a foreign system of religious law in the English courts. In a comment, however, Jen Smith argues that the point of the case is, rather, that because India does not have a unified secular system of family law, the applicable law (which would include Mitakshara) in a particular situation depends on the faith of the person concerned so Hindu family law is merely the secular family law of India for Hindu and Sikhs. On reflection, hers may be the better view.

This Armet, I suppose, was meant to ward off blows . . . . .

On Monday, the Church of England issued a Statement following the judgment of the Court of Arches[5] that “reaffirmed the principle that Treasures from Churches, including those on loan to museums should only sold in exceptional circumstances”, even if for security reasons there is no prospect of such items ever being returned for use or display in a church.

However, perhaps the Court has unwittingly solved the Richard III dilemma: at para. 94 it states that “ … we would hope that it might be possible to secure from [the Royal Armouries Museum in Leeds] such a fibreglass replica of the armet. This could then, subject to faculty, be hung in the church above the effigy of Sir Thomas Hooke … “.

If two fibreglass or resin replicas of Richard III’s bones are made, both York and Leicester can have a set and put them on display (just like the plaster casts of the Pompeii victims) and the real ones can go back in the car park as some have suggested, or perhaps somewhere more respectful but “neutral”.  As in Pompeii, the cathedrals’ audiences are likely to be curious tourists rather than devout pilgrims who have travelled to see a holy relic[6] and the punters are unlikely to be deterred, as the recent increased visitor figures to Leicester, senza Richard, have shown.

And finally … witches, guinea pigs and a dilemma over censorship

Third Sector reported a curious case of religious beliefs intruding into the workplace when Martin Edwards, Chief Executive of the Dorset children’s hospice Julia’s House, offered to read a story to preschool children at a community outreach group run by the hospice. He takes up the story as follows:

“People probably thought it was quite sweet that the chief exec would do the story-time slot. But our staff asked in advance what my choice of reading matter would be, perhaps fearing that I might choose to read from a strategic plan or a commissioning contract. Winnie the Witch, I replied, which I had read to my young children so many times I could almost recite it in my sleep. What could be better, I thought, than this fun and beautifully illustrated children’s book about the amusing mishaps of Winnie and her fluffy black cat Wilbur. But how wrong I was. Word reached me that this choice was not acceptable to certain staff. The word ‘witchcraft’ wasn’t said overtly, but it was clear that the objections were on religious grounds”.

Julia’s House is a secular institution open to children and families of all faiths or none. But Edwards points out that many staff in hospices, as in many charities, are deeply religious – so to avoid offence he chose instead to read My Best Friend Bob, an innocuous story about two guinea-pigs. “Was it wrong to censor my first choice?” he asks – and concludes that “sometimes it’s better just to keep the peace and save our energy for providing services to our service users”.

And a happy Easter to all our readers.


[1] The Parliamentary Unit has published a three-part series on the parliamentary work of the successive occupants of the Sees of Bradford, Ripon & Leeds and Wakefield.

[2] The new Diocese is the largest by area with 656 Anglican churches  serving its population of 2.3 million people and including the cities of Leeds, Bradford and Wakefield as well as North Yorkshire towns such as Skipton, Catterick, Harrogate and Settle. The new diocese is the first to be created in England for over 85 years: it comprises five smaller Episcopal Areas – Bradford, Huddersfield, Leeds, Ripon and Wakefield – each with its own Area Bishop  and Archdeacon, responsible for local decision making. The new diocese will retain its three cathedrals – Bradford, Wakefield and Ripon.

[3] The term “Boy Bishop”, however, has been in widespread use since the Middle Ages and relates to a custom whereby a boy was chosen among cathedral choristers to parody the real bishop, commonly on the feast of Holy Innocents.

[4] Presumably as “The Right Reverend Prelate the Lady Bishop of [Barchester] –though it was some time after her appointment before the title of the first female member of the Court of Appeal (Butler-Sloss LJ) was changed to “Lady Justice”.

[5] Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches.

[6] St Edward the Confessor is the only English monarch with an extant shrine, (Westminster Abbey); The only monarch to be buried in a similar “pole position” such as that proposed for Richard III is King John, (Worcester Cathedral), although he was not canonized.

Further Consistory Court Judgments: Memorials, Fittings & Chattels, and Rights to Light

Recently notified consistory court judgments are normally included within our weekly round-up, but in view of the number arising, we summarized those relating to reordering in an earlier stand-alone post, and will review separately the important judgement Re St. Lawrence Oakley with Wootton St. Lawrence [2014] Court of Arches. The remaining judgements are summarized below.

Memorials

Re St. Andrew Fairlight [2014] Chichester Const Ct, Mark Hill Ch.

This short judgement concerned a request for an “open book” design of memorial”, in memory of the petitioner’s brother, which would match an existing memorial in memory of his mother. This type is not permitted under the Diocesan churchyard regulations, and neither the incumbent nor the PCC have the authority to permit its use.  The DAC was divided on the issue, other than in its agreement that a flower container should not be incorporated in the memorial.  The evidence presented to the court yielded no justification for departing from the prohibition on “open book” memorials, but in view of the exceptional pastoral case made by the petitioner, the Chancellor made an exception to the general rule and granted the petition, subject to conditions.

Re Icklesham All Saints and St. Nicholas [2014] Chichester Const Ct, Mark Hill Ch.

This brief judgement concerned a memorial to a six weeks old infant. The artwork on proposed design, including an infant lying in a crib, several stars, and doves bearing olive branches, did not come within the type normally permitted in consecrated churchyards, but “[i]n the tragic and exceptional circumstances of [the] case” the Chancellor stated that he “had no hesitation in the petition.”

Fittings and Sale of chattels

Re St. Cyriac Lacock [2013] Bristol Const Ct, Justin Gau Ch.

This was a further order in respect of a Faculty authorising the sale of a 15th century silver medieval chalice known as the Lacock Cup to the British Museum, Re St. Cyriac Lacock [2012] Bristol Const Ct, Justin Gau Ch. Amendments were made to this earlier faculty to provide for the sale to the British Museum and Wiltshire Heritage Museum jointly, and the enlargement of objects of the trusts applicable to the proceeds of sale.

Re St. Mary & St. Nicholas Lavant [2014] Chichester Const Ct, Mark Hill Ch.

The church of St Mary and St Nicholas, Lavant is Grade I listed dating from the twelfth or thirteenth, and a confirmatory petition was sought for the mounting of picture by a local artist depicting the baptism of Christ in a modern local setting, mounted on the west wall of the church proximate to the font. The imagery and symbolism in the picture is described in paragraph 3, and readers can view the painting themselves hereThe painting had been commissioned from a local artist and installed without a faculty by a previous rector. On the advice of the Archdeacon the picture was taken down and a retrospective faculty sought following a vote of the PCC.

The petitioners stated that “the vast majority of [its] parishioners have become emotionally attached to the painting and have received inspiration from it. As with any work of art it is not unanimously accepted and it is true that some people would rather it was not re-hung.”  There was one objection to the proposed faculty; the DAC did not recommend hanging the picture within the church on account of its size and style; and the Church Buildings Council was also less than enthusiastic, suggesting that it was hung for a 5 year period, and then the position reassessed.

The Chancellor noted that the removal of unlawful furnishings too required a faculty, although he was prepared to overlook this point. The issue before the court was: had the application been made prospectively, would it have been granted.  Where artistic, aesthetic and spiritual concerns are raised, the court must rely upon expert opinion, and on the evidence before the Chancellor, the petitioners failed to discharge the burden of proof in relation to the grant of a faculty. He stated

“Whilst there may well be a significant majority on the PCC and in the worshipping congregation more generally in favour of the picture, the objections on the grounds of size, aesthetics, and suitability for its proposed position in this Grade I church made by [the objector], by the DAC, and a little less harshly, by the CBC all militate against the faculty. The petitioners have failed to satisfy me that the visual intrusion of this unashamedly modern image into this fine historic church can be justified.”

Confirmatory Faculty refused. Phew.

Rights to light (and air)

Re St. Matthew Camberwell [2014] Southwark Const Ct, Philip Petchey Ch.

The Vicar of St Giles with St Matthew, Camberwell petitioned for a faculty for the Southwark Diocesan Board of Finance to sign a deed of release, whereby the Board of Finance would release the rights of light enjoyed by St Matthew’s Church, Camberwell to the extent necessary to permit a housing development by Notting Hill Ownership Limited.

In 2009, Notting Hill Ownership Limited obtained planning permission for a substantial housing development on Coldharbour Lane which “wrapped around” two sides of the church, and “had a (comparatively modest) effect on the natural light available to the church.” In conjunction with its lawyers and a specialist “rights to light” consultancy, the church reached an agreement with Notting Hill Ownership Limited subject to a payment of £20,000 to “the Church”, in this case identified as the South London Church Fund and Southwark Diocesan Board of Finance.  The issue for the court was to how this agreement might to be put into effect.  The question arises as to whether the South London Church Fund and Southwark Diocesan Board of Finance is the appropriate church body’ to enter the deed; and, if it is not, whether any adjustments will have to be made to the deed (apart from the substitution of a different party) to reflect that fact.

With regard to the “right to light”, the Chancellor stated, [para. 8],

“There is no natural right to light. What there can be in appropriate circumstances is an easement of light to a building.  If an easement of light exists, it may be actionable in a neighbour to interfere with it. Thus the background to the agreement in the present case is that the church does enjoy an easement of light with which the development is going to interfere; and that “the Church” is prepared to permit that interference upon payment of a slim of money.

and in terms of the relevant legislation,

“[t]he freehold of a consecrated church vests in the incumbent for the time being.  His ownership is, however, subject to this peculiarity: the incumbent cannot alienate or create an interest in the land without the authority of an Act of Parliament or a Measure of Synod,”

and by virtue of the common law position, [para. 9], the incumbent has no power to grant a deed of release of an easement of light attached to the church, the freehold
of which is vested in him.  However, the Chancellor indicated that he had not encountered any express authority on this point: section 8 (2) Mission and Pastoral Measure 2011 was inapplicable in this case; and likewise section 9 Church Property (Miscellaneous Provisions) Measure 1960 (power to take or grant easements) since this applies to property vested in the incumbent as property of the benefice, and the church and churchyard does not form part of such property.

Consequently, the Chancellor reasoned [paras. 12 & 13]

“if an incumbent does not generally have a power to alienate a church vested in him or derogate from his ownership of the legal interest in the church by granting an easement, he does not have power to grant a derogation from an easement which the church and/or churchyard enjoys whether by way of a right of way or an easement of light.”

and citing Re St Peter’s, Bushey Heath, St Alban’s Const Ct, Newsom QC Ch

“[t]he inability of an incumbent to grant a legal interest in the church or churchyard does not, in practice, cause a problem: rather than grant an easement, the incumbent grants a licence under the authority of a faculty.

He continued,

“Recent practice in this Diocese (and, I believe, in other dioceses) has been for a faculty to authorise the grant of a licence by the incumbent. This is something which occurs comparatively often, the authorisation of telecommunications equipment in connection with the mobile phone network proceeding in this way.

It seems to me that the authorisation of a derogation of a right to light may proceed in the same way: the incumbent licensing the construction on land adjoining the church of a building which will obstruct the light to the church.

The current agreement is, of course, not in the form of such a licence. Accordingly, by this judgment I will simply indicate that I would be minded to authorise the grant of such a licence when presented to me.

Footnote

The “rights to light” was the subject of a Law Commission consultation in 2013 as part of a project which seeks to ascertain whether the law by which rights to light are acquired and enforced provides an appropriate balance between the important interests of landowners and the need to facilitate the appropriate development of land[1].

Rights to air

At paragraph 6, Re St. Matthew Camberwell , the Chancellor stated

“ . . . . there is a reference [in the draft agreement to enter a deed of release] in clause 2.1 (ii) to rights of air. I can see from the (electronic) travelling draft of which I have a copy that this is a late insertion, and probably inserted out of an abundance of caution. It seems to me unlikely that any question of rights of air arise, and I would propose that such a reference be deleted in the final version of any deed that is entered into.”

Whilst it is unlikely that the Church was relying upon the legal maxim cuius est solum, eius est usque ad coelum to secure its channels of communications to the Almighty[2], it probably had in mind the tort of trespass when applied to the encroachment into air space of a building’s site tower cranes following Woollerton & Wilson Limited v Richard Costain Limited [1970] 1 WLR 411.  Such considerations might be pertinent to the construction phase(s) of a development which “wrapped around” two sides of a church.


 [1] Following the close of the consultation period, in discussion with Government the Law Commission will review how to take the project forward in the light of consultees’ responses. If the project proceeds to a final report with draft bill, it anticipates that publication will be in late 2014.

[2] . . . . . . and it is perhaps wise not to explore the relevance of “et ad inferos”.

Property rights in England and Wales and the applicability of Hindu law

The facts

Singh v Singh & Anor [2014] EWHC 1060 (Ch) was a dispute in a family of Sikhs, between Bal Mohinder Singh, the claimant, and his sons Jasminder Singh and Herinder Singh, over the ownership of certain properties, including Tetworth Hall and shares in a hotel group, Edwardian Group Limited (“EGL”). The case was heard by Sir William Blackburne, a retired judge of the Chancery Division.

What made the case so unusual (and engaged our interest) was the claimant’s assertion that the disputed property was a joint family asset held in accordance with the principles of the Mitakshara: the legal code written in the latter part of the 11th century CE and the basis of the orthodox system of Hindu law which prevails in most of India – and under which a Hindu (and, by extension, a Sikh) family living and eating together as a composite household may hold its property jointly:

“The beneficial interest in property of a joint Hindu (or Sikh) family, if held subject to the Mitakshara, belongs jointly to the male members of that family down to the third generation from a common male ancestor. The male members are sometimes called ‘coparceners’. The property owned by the coparceners is frequently referred to as ‘coparcenary property’” [para 2].

The case was one of extraordinary complexity. In paragraph 56 of his particulars of claim Bal Mohinder Singh pleaded that the

“… principles and customs [of the Mitakshara] provide the content of a constructive trust which governs the family property of the Singh family by virtue of the common understanding of Father, Mother and their children throughout the period when the property was being acquired that they all had beneficial interests in that property which were in accordance with those principles” [para 4].

Jasminder Singh contended that what he held in his name, including in particular Tetworth Hall and his shares in EGL, was beneficially his own and not held by him as joint family property in accordance with the Mitakshara – and that until the dispute had first arisen he had never heard of the Mitakshara, let alone understood how it operated [para 5].

Given that the point at issue was a matter of foreign law, both sides adduced (conflicting) expert evidence in their support. As a  legal theorist, the expertise and interest of Professor Werner Menski lay in the sociological role and impact of Hindu law as it affects the lives and culture of the peoples who are subject to it rather than in the day-to-day operation of the law in question.  In contrast to Professor Menski, Dr Mohan confined himself almost entirely to setting out the relevant principles of the Mitakshara and how they operated in practice. At para 82 Sir William described Dr Mohan’s knowledge of “black-letter law” as “impressive” and relevant to the enquiry which faced the court in resolving the dispute. In addition, Sir William took note of two textbooks on Hindu Law,  Mulla’s Principles of Hindu Law, now in its 21st (2010) edition of which he was provided with the 10th (1946) edition , and Mayne’s Hindu Law & Usage, 16th edition (2010).

As to the facts, Sir William pointed out that:

  • the court was not “shown a single document out of the voluminous quantity disclosed which assumed that any property that was being acquired was a joint family asset” [para 169];
  • “without exception none of the witnesses had heard of … Mitakshara … before these proceedings began or, perhaps more tellingly, could recall a single occasion when there had been any discussion of the concept of joint family property [para 170]; and
  • there were documents before the court evidencing dealings or setting out wishes that were inconsistent with any understanding by Bal Mohinder Singh (let alone any common intention between him and Jasminder) that the property was to be dealt with in accordance with Mitakshara principles [para 171].

He concluded that at no material time had there been any common understanding between the claimant and the defendants that any property acquired and legally owned by each or any of them would be subject to a common understanding that Mitakshara principles applied to it. Claim dismissed.

Comment

Singh v Singh & Anor is at the outer limits of our interests and its complexities are somewhat beyond my technical competence. But the reason for bringing to the attention of readers of this blog is a simple one, given recent media controversies about the relationship between secular and religious law. At para 82 of his judgment Sir William stated that the establishment and content of the common intention constructive trust whose existence Bal Mohinder Singh was seeking to establish

“… served as the means by which English Law would give effect to the Mitakshara principles so far as they related to the ownership and management of joint family property; in other words, it was those principles which provided the trust with its content”.

The implication of this is that there are circumstances in which the secular courts in the UK will enforce religious law as foreign law.

Sir William dismissed the claim on the facts: he concluded that there was no evidence before him to suggest that the parties had believed that the coparcenary principles of Mitakshara applied to the property in dispute. What he did not do was to suggest that those principles could not have been applied had there been evidence to the contrary. Had the parties believed that the disputed property was subject to Mitakshara principles, then there is no reason to assume that the court would not have enforced them. After all, the court had heard expert evidence from both sides as to their applicability.

Frank Cranmer

We should like to thank Simon Hunter of Thirteen Old Square Chambers for bringing this case to our attention.

The Council of Europe on sects: update

At the end of March we posted about the report of the Legal Affairs and Human Rights Committee of the Parliamentary Assembly of the Council of Europe on The protection of minors against excesses of sects. We noted in particular a passage in the draft Resolution included in the report, as follows: That the Assembly

“… strongly condemns the ‘excesses of sects’, namely acts which have the purpose or effect of creating, maintaining or exploiting a state of psychological or physical submission in an individual, causing harm to that individual or for society. Such excesses may cause human rights violations, particularly in terms of the health, physical and psychological integrity, schooling and social and emotional development of minors, who are often removed from their family environment and/or cut off from any outside contact”

and suggested that the wording was extremely unfortunate, given that nowhere in the document was the word “sect” defined.

It now appears that wiser counsels within the Assembly have prevailed. On 10 April the Plenary adopted an amended text, as follows:

“1. The Parliamentary Assembly underlines the commitment of the Council of Europe to a policy for the protection of minors, which has led to the adoption of a number of conventions in this area, including the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (CETS No. 201), the Convention on Action against Trafficking in Human Beings (CETS No. 197) and the European Convention on the Exercise of Children’s Rights (ETS No. 160), and which may be relevant where the excesses of sects lead to exploitation and abuse of or trafficking in children or to disregard for their rights in the framework of judicial proceedings.

2. The Assembly is particularly concerned about the protection of minors, in particular minors who belong to religious minorities including sects. It is committed to a policy for respect for freedom of religion or belief as stated in Article 9 of the European Convention on Human Rights (ETS No. 5) and condemns intolerance and discrimination against children on grounds of religion or belief, in particular in the education system.

3. The Assembly itself has adopted texts on child protection and welfare, including Recommendation 1551 (2002) “Building a 21st century society with and for children: follow-up to the European Strategy for children (Recommendation 1286 (1996))”, Resolution 1530 (2007) and Recommendation 1778 (2007) “Child victims: stamping out all forms of violence, exploitation and abuse” and Resolution 1952 (2013) and Recommendation 2023 (2013) on children’s right to physical integrity.

4. The Assembly is concerned when any minors are abused in any way. It is vital that existing legislation be firmly applied and that this is done within the context of respecting the rights of children and their parents in line with Articles 9 and 14 of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights.

5. The Council of Europe has always promoted a culture of “living together” and the Assembly has spoken out on several occasions in favour of freedom of thought, conscience and religion, as well as in favour of minority religious groups, including those which have recently appeared in Europe, in particular in Recommendation 1396 (1999) on religion and democracy and Recommendation 1804 (2007) on State, religion, secularity and human rights and in Resolution 1846 (2011) and Recommendation 1987 (2011) on combating all forms of discrimination based on religion. The Assembly believes that any religious or quasi-religious organisation should be accountable in the public sphere for any contraventions of the criminal law and welcomes announcements by established religious organisations that reports of child abuse within those organisations should be reported for investigation to the police. The Assembly does not believe that there are any grounds for discriminating between established and other religions, including minority religions and faiths, in the application of these principles.

6. The Assembly notes that, in conformity with Resolution 1530 (2007), the protection of minors, parental rights and freedom of religion or belief are to be promoted in any context, whether public (including public schools, hospitals, etc.) or private (including private education systems, the family, sport and other recreational activities, religious activities, etc.).

7. The Assembly therefore calls on the member States to sign and/or ratify the relevant Council of Europe conventions on child protection and welfare if they have not already done so.

8. The Assembly also calls on national parliaments to set up study groups on the protection of minors, in particular those belonging to religious minorities.

9. The Assembly calls on member States to ensure that no discrimination is allowed on the basis of which movement is considered as a sect or not, that no distinction is made between traditional religions and non-traditional religious movements, new religious movements or “sects” when it comes to the application of civil and criminal law, and that each measure which is taken towards non-traditional religious movements, new religious movements or “sects” is aligned with human rights standards as laid down by the European Convention on Human Rights and other relevant instruments protecting the dignity inherent to all human beings and their equal and inalienable rights”.

Though the Resolution still does not attempt to define “sect”, much of the objection to the wording of the original draft has fallen away, given the sentiments of para 9 of the adopted text. In other words, all manifestations of religion of whatever kind should be judged by the same objective legal standards.

As The Economist’s admirable Erasmus blog concludes:

“It’s not often that Jehovah’s Witnesses, secularists and humanists find themselves on the same side, and rejoicing for the same reason, but this seems to be one such moment”.