Law and religion round-up – 12th November

 This week we were reminded that a “fulsome” apology meant a “sickeningly obsequious” one: aside from which there were a number of disparate issues that added up to a lengthy round-up…

Uber loses its appeal

Taxi firm Uber has lost its appeal against a ruling that its drivers should be treated as workers rather than self-employed. Last year, an Employment Tribunal ruled that Uber drivers James Farrar and Yaseen Aslam were employed by Uber and therefore entitled to holiday pay, paid rest breaks and the National Living Wage. Uber appealed, arguing that its drivers were self-employed and were under no obligation to use its booking app. In the Employment Appeal Tribunal, HHJ Eady was satisfied that the ET had not erred either in its approach or in its conclusions when it rejected Uber’s argument that it was simply connecting independent drivers with customers, Unsurprisingly, Uber has announced that it will appeal against the latest ruling.

Which has more to do with “religion” than you might think. Religious organisations have office holders, employees, workers, interns, people on work-experience and volunteers. This latest judgment underlines the fact that courts and tribunals are prepared to look behind the contractual forms to the factual situation: see Autoclenz Ltd v Belcher & Ors [2011] UKSC 41. The EAT decision helps to re-emphasise what we have said before: that churches need to look carefully at the terms of engagement of their staff and volunteers to make sure that they do not find themselves employing someone by accident. But no doubt the Court of Appeal, or possibly the Supreme Court, will clarify things further.

Ireland, Scientology and perpetual injunctions

In Collins & Anor v Griffiths & Anor [2017] IEHC 658, a disaffected former member of the Church of Scientology applied successfully to have a perpetual injunction against him lifted. The plaintiffs, Zabrina Collins and Michael O’Donnell, are members of the Church of Scientology, while the defendants, Peter Griffiths and John McGhee, are former members. The injunction related to an incident in North Dublin: in summary, Ms Collins and Mr O’Donnell were distributing leaflets entitled “The Truth About Drugs” and were followed at very close quarters, sometimes in physical contact, by Mr Griffiths and Mr McGhee, who spoke to them continuously about their beliefs in disparaging terms. In December 2014, the plaintiffs applied successfully for an interim injunction against the defendants, which the Circuit Court subsequently made perpetual.

In the High Court, Noonan J stated that the onus rested upon the plaintiff to show a “proven substantial risk of danger”. He was not convinced that the plaintiff had done so: the circumstances that gave rise to the injunction was a single incident for approximately half an hour – and the plaintiffs had recovered damages. There was no suggestion that Mr Griffiths had been in breach of the injunction in the three years since it was granted – and he was a truthful witness and, by and large, a law-abiding citizen. Moreover, he had not been the main protagonist and had apologised for the incident in his evidence. So the likelihood of a repetition was small and did not amount to a substantial risk.

Furthermore, Noonan J emphasised that “injunctive relief, perpetual or otherwise, is … an equitable remedy and the person who seeks equity must come to the court with clean hands” [19]. He viewed the conduct of Ms Collins as “a calculated attempt to demonise and discredit Mr Griffiths … [which] … cannot be viewed as other than a failure to come to court with clean hands” [20]. The injunction was accordingly lifted. [With thanks to Irish Legal News, which carries a longer note]

Canada, disfellowshipping and the JWs

In Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses 2016 ABCA 255 (CanLII), Mr Wall had sought judicial review of his expulsion from the Highwood Congregation. As we previously noted, a chambers judge had concluded that the Court of Queen’s Bench had jurisdiction to hear the application and the Court of Appeal of Alberta (Paperny & Rowbotham JJ: Wakeling JA dissenting) upheld that ruling.

On 13 April the Highwood Congregation was granted leave to appeal by the Supreme Court of Canada and on 2 November the Supreme Court of Canada heard oral argument. Watch this space.

Gender recognition in Scotland 

The Scottish Government has published Review of the Gender Recognition Act 2004: A Consultation. Though the Gender Recognition Act 2004 extends across the United Kingdom, gender recognition is a devolved matter within the legislative competence of the Scottish Parliament. The Scottish Government believes that the requirements of the 2004 Act are too intrusive and onerous and need to be reformed and simplified. Its proposals include removing requirements for applicants to provide medical evidence and to have lived in their acquired gender for two years before applying. Some requirements would remain, such as applicants having to provide a statutory declaration to confirm they fully understand the implications of their application and intend to live in their acquired gender for the rest of their lives.

The Scottish Government also intends to consult separately later in the year on how it should address the issues experienced by intersex people and people with variations of sexual characteristics.

And while we’re in Scotland…

BEMIS Scotland, the Scottish national ethnic minorities umbrella body, has argued that Lord Bracadale, of the Inner House of the Court of Session, should not preside over the Scottish Government’s review of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 because he was a member of the court that decided “the leading case” on the interpretation of the Act. Lord Bracadale was a member of the Appeal Court of the High Court of Justiciary in Donnelly and Martin Walsh Against Procurator Fiscal, Edinburgh, Stated Cases By [2015] ScotHC HCJAC 35, in which William Donnelly and Martin Walsh appealed unsuccessfully against their convictions in relation to singing a pro-IRA song, “The Roll of Honour”, at a match between Hibernian and Celtic on 19 October 2013. Delivering the Opinion of the Court, Lord Carloway, who was then Lord Justice Clerk, had held that it was “firmly established in law, and incidentally very well-known, that singing songs of a sectarian nature at football matches is likely to be a criminal act” [13].

According to a report in The Herald, the parliamentary and policy officer of BEMIS Scotland said in a memorandum to MSPs considering the repeal of the Act that:

“Given that the Act is not primarily a piece of hate crime legislation and that the esteemed Lord Bracadale has presided over the leading case in relation to the Act it seems a matter of natural independence that Lord Bracadale should not be expected to review contentious legislation that is being reviewed by parliament…”

The rights and wrongs of the Act need not concern us here, but the obvious reaction to the suggestion that Lord Bracadale should recuse himself from the review is, “But hang on, folks: he’s a judge. Judging cases is what judges do. So what’s the problem?”

Criminal blasphemy in Italy

The art blog Hyperallergic reports that an anonymous artist, Hogre, has been arrested in Italy and charged with publicly insulting religion in violation of Article 403 of the Criminal Code. On 1 June, the artist placed a satirical poster in bus stop advertising spaces in Rome: the poster, entitled “Ecce homo erectus”, depicts Jesus with a conspicuous erection and resting one hand on the head of a praying, kneeling child. The artist states that it is a response to the sexual abuse charges pending in Australia against Cardinal Pell. A companion poster displayed alongside it, “Immacolata conception in vitro,” by Hogre’s friend doublewhY, shows two women holding a baby, one of whom is sticking up her middle finger at the viewer. The text and image suggest a parallel between in vitro and immaculate conception.

The fine for a breach of Article 403 is €1000 to €5000. [With thanks to Howard Friedman.]

Recent judgments in ecclesiastical courts and tribunals

Whilst our monthly round-up of consistory judgments &c did not appear at the end of October, readers can be assured of a bumper edition at the end of this month. Nevertheless some cases have filtered through to the popular media: “Church to replace 107-year-old organ with modern version as opponents say ‘guitars and drum kits’ now rule ” in the Daily Telegraph; and “Vicar dubbed the ‘randy reverend’ over affair with barmaid is defrocked after he forged the Bishop of Durham’s signature in alleged insurance fraud” in the Daily Mail. These will be reported as Re St Paul St Albans [2017] ECC StA 2 and Huntley (2).

Yet to cross our desks (or, at any rate, laptops) is the judgment relating to the Mirror’s storyChurch admits it buried man with wrong wife in shocking blunder only discovered when her real husband died“, which appears to fall within the Blagdon classification of “mistake”; also the case of the exhumation of Dr David Kelly, the former Iraq weapons inspector who took his own life near his home in Longworth, Oxfordshire, in 2003. The Church Times (£) reports 

“[Dr Kelly’s remains] were exhumed earlier this year at the request of his family, the diocese of Oxford, which granted the faculty, has confirmed this week … The Sunday Times journalist Andrew Gilligan, the author of the BBC story, reported this week that sources close to the family of Dr Kelly had been prompted to apply for the faculty after the grave had been ‘desecrated’ by campaigners who did not believe that the scientist took his own life”.

Although not fitting neatly within a category identified in Blagdon, the historical precedent for the moving of remains for reasons of security was addressed in Bishop Christopher Hill’s “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447; more recently, the remains (wrongly) assumed to be those of King Alfred the Great were exhumed in March 2013 from the churchyard of St Bartholomew’s, Winchester “to counter the risk of theft from or vandalism to the grave; this is in light of heightened risk owing to widespread recent speculation about the significance of its contents”.

Of bishops

On 9 November, No 10 announced that the Queen has approved the nomination of  the Rt Revd Dr Helen-Ann Macleod Hartley, Bishop of Waikato in the Diocese of Waikato and Taranaki, New Zealand, to the Suffragan See of Ripon in the Diocese of Leeds in succession to the Rt Revd James Harold Bell on his resignation 30 April 2017. Her husband Myles, an organist and church musician, will probably appreciate the “mechanical hand” for conducting the choir, which was added to the organ loft in 1695.

Also on 9 November, the Episcopal Synod of the Scottish Episcopal Church elected the Revd Canon Anne Dyer as the new Bishop of Aberdeen & Orkney; Canon Dyer has been Rector of Holy Trinity church, Haddington, since 2011 and her wider church involvement includes being a member of the Scottish Episcopal Institute Council and a member of General Synod. The Anglican Communion News Service notes that it is fourteen years since the SEC formally opened the doors to the consecration of women to the episcopate. This is the third “first” for Canon Dyer: in 1987 she was amongst the first group of women to be ordained to the diaconate in the Diocese of Rochester and also amongst the first group of women in Rochester to be ordained to the priesthood in 1994.

On 10 November, The Rt Revd Dr Alastair Redfern announced that he would be retiring as Bishop of Derby from 31 August next year. The current diocesan vacancies are: London (February 2017), Truro (August 2017) and Bristol, (September 2017). No other diocesan bishops are due to reach retirement age in 2018.

Twitter’s new limit 

This week, Twitter increased the number of characters in tweets from 140 to 280 for the majority of users, including those used by L&RUK. Whilst the former limit avoids the problem of “tl;dr”, a limited trial suggested that those who did use the longer tweets, attracted “more followers, more engagement and spent more time on the site”. At L&RUK, we’ll probably stick to something near the previous 140-character limit, if only to avoid boring our followers rigid. But we’ll no longer have the problem of having to fiddle around with draft tweets in order to shave off four or five characters to fit inside the limit.

A tweet from Yeovil vicar David Keen‏ gave the story an appropriate biblical twist:

“Master” he said “you entrusted me with 140 characters, see I have gained 140 more” his master replied “no wonder you never get anything done, you’re fired” #twitterparables.

And do read the piece by Catherine Wilcox (aka @FictionFox) in The ConversationWhy the row over Twitter #280characters is a storm in a flat white.

Quick Links

And finally…

Not quite in the “you couldn’t make it up” category, but Mr Mark Hendrick (Preston) (Lab) tabled a Written Question to the Second Church Estates Commissioner asking “what assessment the Church of England has made of whether to mark the 400th anniversary of the imposition of the Five Articles of Perth by James I of England and VI of Scotland on the Church of Scotland”. To which Dame Caroline Spelman replied,

“The decision to mark the 400th anniversary of the Five Articles of Perth is not a matter for the Church of England, being as they were specific to the Crown and the Church of Scotland. This decision is a matter for the Church of Scotland and the Scottish Episcopal Church. Should they wish to mark this anniversary, it would be their decision as to whether to invite the Church of England to participate.”

We suppose that Dame Caroline’s reply might have added a nanogram or two to the total sum of human knowledge. But quite apart from the fact that the Five Articles were repealed by the Confession of Faith Act 1690 – so they’re not exactly a live issue – what conceivable responsibility could the Church Commissioners have either for the Articles themselves or for the Church of England’s opinion of them? And as for the Kirk, see the Church of Scotland Act 1921 and the Articles Declaratory annexed thereto.

One thought on “Law and religion round-up – 12th November

  1. Pingback: Law and religion round-up – 19th November | Law & Religion UK

Leave a Reply