The Christian Brothers, child abuse and vicarious liability – yet again

In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 – aka the Christian Brothers case – Lord Phillips PSC laid down a series of principles governing vicarious liability for tortious conduct in which it is reasonable “to impose vicarious liability on the employer when these criteria are satisfied:

(i)  The employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability;

(ii)  The tort will have been committed as a result of activity being taken by the employee on behalf of the employer;

(iii)  The employee’s activity is likely to be part of the business activity of the employer;

(iv)  The employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee;

(v)  The employee will, to a greater or lesser degree, have been under the control of the employer” [35]. Continue reading

Law and religion round-up – 30th October

The McArthurs & Ashers Baking lost their appeal, the Northern Ireland High Court rejected a challenge to Brexit, the Vatican issued an instruction on what to do with cremated remains – and Hill Ch was rightly scathing about sloppy faculty applications…

The Great Ulster Bake-off

Much the biggest news of the week was the judgment of the Northern Ireland Court of Appeal in Lee v McArthur & Ors [2016] NICA 29. The Court rejected the appeal of Colin and Karen McArthur and Ashers Baking against the ruling in the county court that they had discriminated directly against Gareth Lee on grounds of sexual orientation by refusing to bake him a cake with a slogan supporting same-sex marriage.

The judgment has attracted a variety of comments, most, but not all of it critical – Continue reading

Breaking news: Northern Ireland High Court rejects challenge to Brexit

Today in the Northern Ireland Nisi Prius Court, Mr Justice Maguire handed down judgment in McCord, Re Judicial Review [2016] NIQB 85, conjoined applications for judicial review by Mr Raymond McCord and a cross-party group of politicians led by Steven Agnew MLA. The hearings took place on 4-5 October and part of the proceedings was stayed because the two cases overlap with the judicial review proceedings at the High Court in London. Maguire J rejected both challenges to Brexit. There is a summary of the judgment hereContinue reading

Should yoga instructors have formal qualifications?

There are currently no official qualifications required to become a yoga instructor in the UK and there is a debate about whether or not regulation is needed to protect the public from incompetent teachers. The sector skills council for active leisure, learning and wellbeing, SkillsActive, is consulting over the next twelve months about creating a national occupational standard (NOS) to set a sector-wide minimum for yoga teaching in the UK. Continue reading

Legal advice from the Church of England: PCCs, highways and post offices

Legal Opinions from the Church of England

On 24 October 2016, legal opinions on three quite disparate areas were made available in the CofE’s Document Library. These Opinions were produced by the General Synod Legal Advisory Commission and relate to the operation of Parochial Church Councils, public rights of way over land forming part of a churchyard and using churches for secular purposes. Continue reading

The “gay cake” case: Ashers Baking loses its appeal

Slightly updated version of the note posted earlier.

The background

Ashers Baking is owned by the McArthur family. It offered to bake cakes iced with a graphic of the customer’s own design. Gareth Lee is gay; and to mark the International Day Against Homophobia and Transphobia, in May 2014 he ordered a cake from Ashers bearing the slogan “Support Gay Marriage” and a picture of the Sesame Street puppets Bert and Ernie. Ashers initially accepted his order but Mrs Karen McArthur subsequently telephoned him to say that his order could not be fulfilled because Ashers was a Christian business and that, with hindsight, she should not have taken the order in the first place. She apologised and refunded his money.

Before Belfast County Court, in Lee v Ashers Baking Co Ltd & Anor [2015] NICty 2 Mr Lee had claimed that he had been discriminated against contrary to the provisions of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998. District Judge Brownlie found for Mr Lee, concluding that Ashers Baking was liable under the 2006 Regulations for the unlawful acts of its two directors, Mr and Mrs McArthur, and that they, in turn, were liable under Regulation 24 for aiding Ashers Baking to act unlawfully. As a result of their actions, the company had discriminated unlawfully against Mr Lee. They appealed and the matter came before the Court of Appeal in Belfast by way of case stated.

The decision of the Court of Appeal

In Lee v McArthur & Ors [2016] NICA 29the Court of Appeal [Morgan LCJ, Weatherup and Weir LJJ] held that Ashers Baking Company had directly discriminated against Gareth Lee on grounds of sexual orientation by refusing to make a cake supporting same-sex marriage. It further held that the relevant legislation was not incompatible with Articles 9, 10 or 14 ECHR. Continue reading

Law and religion round-up – 23rd October

A week in which most of the news was political: a 19 per cent swing to the Lib Dems in Witney, a Scottish Independence Referendum Bill – and French politicians competing to be “plus laïc que vous”…

Draft Scottish Independence Referendum Bill published

The Scottish Government has published its Bill for a second independence referendum. The proposed question is the same as that asked in 2014: “Should Scotland be an independent country?”. Under the Scottish Government’s proposals, which are very similar to those under which the 2014 referendum took place: Continue reading