Law and religion round-up – 23rd June

The week in which Dominic Raab’s leadership campaign was prorogued – it’s Johnson v Hunt…

but on a more serious note, proroguing Parliament could give rise to a “Catch-22” situation. Raab had said that he did not rule out proroguing Parliament until the 31 October Article 50 deadline had passed. However, as the Institute for Government noted in a recent post: “[i]f Parliament was prorogued to facilitate no deal, it would not be possible to pass any bills or remaining secondary legislation needed to prepare the UK statute book for such an outcome. It would also prevent the Government from legislating to change the ‘exit day’ currently legislated for in the EU Withdrawal Act and give effect to any new extension to Article 50”.

Religious beliefs and employment again 

Judgments were handed down in two linked cases: Page v NHS Trust Development Authority [2019] UKEAT 0183 18 1906, and Page v Lord Chancellor & Anor [2019] UKEAT 0304 18 1906. Mr Richard Page, a practising Christian, was a lay magistrate sitting on family cases involving adoption decisions. As a matter of religious belief, he was opposed to children being adopted by single parents or same-sex couples – and said so in various media interviews. He was removed from his position as a magistrate and he was also suspended by the NHS Trust of which he was a Non-Executive Director and his appointment terminated. He sued the Lord Chancellor and the Trust – unsuccessfully in both cases.

We hope to publish a note later in the week.

Defamation, “serious harm” and social media

Of interest to all bloggers, in Lachaux v Independent Print Ltd & Anor [2019] UKSC 27 the Supreme Court has held unanimously that the Defamation Act 2013 altered the common law presumption in England & Wales of general damage in defamation. To be liable in defamation, therefore, it is no longer sufficient that a statement should be inherently injurious or have a “tendency” to injure a claimant’s reputation. Instead, the language of s.1(1) of the Act requires that a statement must produce serious harm to reputation in order to be defamatory.

Earlier in the year – this time of interest to customers of Facebook – in Stocker v Stocker [2019] UKSC 17 a wife posted the words “he tried to strangle me” about her husband’s violent actions, and he sued her, alleging that her post had falsely suggested that he had attempted to kill her. The Court’s decision turned entirely on the meaning of Mrs Stocker’s posted words and, in finding in her favour, Lord Kerr held that they had to be understood in terms of “a new class of reader: the social media user” [41]. Therefore:

“[I]t is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on” [43].

That said, we don’t propose to push our luck with potentially-defamatory statements, whether on the blog or on Twitter or Facebook. The UK Human Rights Blog carries a helpful analysis of the judgment in Lachaux, while the Oxford Human Rights Hub has a post on Stocker.

And while we’re on the subject of social media…

Church of England Daily Digest

This week, some of the Twitterati became rather exercised about the content of the Church of England’s Daily Digest, implying that @churchofengland had e-mailed an anti-#BorisJohnson article to its entire mailing list. Helpfully, Arun Arora, a former Director of Communications of the Archbishops’ Council, circulated the Guidelines on Daily Digest Compilation issued in August 2016 which stated:

“Editorial decisions as to which news reports are included in the daily digest are a matter for the compiler and editor. Decisions are influenced by practical considerations such as time for compilation and edit and the number of news reports on any given day. It is not the aim of the digest to provide a signpost to all the commentary being offered by individuals or campaigning groups on their own sites about Church of England matters.”

Nick Baines emphasized that the Guidelines for the Digest cover any mention of the C of E, whether good or bad, so “[a]nyone reading the digest regularly would recognise that a wide range of coverage is reflected in the digest’s content, not all of which will reflect well on the Church but rather reflects what is being reported in print and digital media”. Since 2016, the Guidelines have excluded reporting blogs (even ours) “since there are so many of them”.

However, two issues arise from these Twitter conversations. First, since the Guidelines were issued in 2016 it is perhaps time they were reviewed. Secondly, the Daily Digest is e-mailed to its subscribers but is not easily accessed from its “News” or “Press Office” pages: the sign-up page for these is here.

Discharging firearms in church

In the recently-circulated case Re St Mary Melton Mowbray [2019] ECC Lei 4, Chancellor Blackett-Ord provided an interesting aside in his judgment which granted a confirmatory faculty for unauthorized restoration work to the 17th-century painting of the Royal Coat of Arms, which had been undertaken by a non-specialist. The archives of the Church revealed that in 1951 the Royal Coat of Arms had been taken down and sent to the College of Arms for restoration, where it was found to have a previous date of 1634, and that “Embedded in the woodwork were shot holes and it was assumed that it had been used for musketry target practice during the Civil War” [7].

However, he noted, “the references to Cromwellian musketry may reflect a general lack of careful consideration to the history of this very interesting object”. It was “plainly impossible for Cromwellians to have been shooting at a board that was painted in 1682”, and “the bullet-holes are mere pellet-holes and none is the size of a hole that would have been made by a musket ball”. His own guess was that “the holes are in the form that would have been left by lead shot fired by an enthusiastic sexton at the birds which we know were in the habit of making use of the top of the board for non-liturgical purposes” [12, 13]. He noted:

“[16] It is unfortunate that the opportunity was not taken for a specialist examination of the board before the present works were embarked upon. Such an examination might have answered these questions, and given consideration to whether the board should on the one hand be repainted, or on the other hand conserved but in its present rather tatty appearance.”

Whilst not blaming the conservator, he did criticize the PCC for “failing to have a proper investigation of this very interesting board before any works were done to it, and for failing to give clear instructions to [her] as to what she was meant to be doing”. The PCC was fortunate that a petition was granted, albeit “with some hesitation”.

Rights of sperm donors in Australia

In Masson v Parsons [2019] HCA 21, the High Court of Australia has ruled that sperm donor is the legal father of an 11-year-old girl after being actively involved in her life. The 49-year-old man and the child’s mother, who was single at the time, had been friends when he agreed to donate his semen in 2006. They arranged to raise the child together and his name was entered on the child’s birth certificate as her father and he had what the judge at first instance had described as “an extremely close and secure attachment relationship with the child” [3]. However, they had later fallen out, and she had argued that he was not the child’s father. After the girl’s biological mother and her wife had decided to move to New Zealand with the child, he had sought orders from the Family Court of Australia, inter alia for shared parental responsibility with the two women, restraining the girl’s removal from her current area of residence in Australia and providing for her to spend time with him on a fortnightly cycle [4].

The High Court overturned the ruling of the lower court that the claimant did not have parental rights. Said the Court:

“To characterise the biological father of a child as a ‘sperm donor’ suggests that the man in question has relevantly done no more than provide his semen to facilitate an artificial conception procedure on the basis of an express or implied understanding that he is thereafter to have nothing to do with any child born as a result of the procedure. Those are not the facts of this case. Here, as has been found – and the finding is not disputed – the appellant provided his semen to facilitate the artificial conception of his daughter on the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done. Accordingly, to characterise the appellant as a ‘sperm donor’ is in effect to ignore all but one of the facts and circumstances which, in this case, have been held to be determinative” [54].

Neil Foster has posted a full note analysis on Law and Religion AustraliaSperm donor recognised as father.

Burkinis in Rheinland-Pfalz

The Higher Administrative Court [Oberverwaltungsgericht] of Rheinland-Pfalz has granted an interim suspension of Koblenz City Council’s ban on whole-body swimsuits in its municipal swimming pools. The applicant, a Syrian asylum seeker, had said that she had been given medical advice to swim in order to alleviate her back pain, but that because of her religious beliefs she could only do so in a burkini. We noted the ruling here.

Quebec and religious dress

After a marathon session, Quebec’s Assemblée Nationale passed an amended version of Bill 21, the “Loi sur la laïcité de l’État /  An Act respecting the laicity of the State”, which bans certain public servants from wearing religious symbols at work. We noted it here – and will be following the inevitable legal challenges with considerable interest.

And in the US, yet more gay cakes…

In 2012, Melissa and Aaron Klein, owners of Sweetcakes by Melissa, refused to make a wedding cake for Rachel and Laurel Bowman-Cryer on the grounds that doing so would violate their religious beliefs. The Bowman-Cryers complained to the Oregon Bureau of Labor and Industries, which ruled that the Kleins had violated the state’s non-discrimination law and awarded $135,000 in damages. The Kleins lost on appeal – and Sweetcakes by Melissa went out of business.

They appealed to the US Supreme Court in November 2018; and on 17 June, in Klein et Vir v Oregon Bureau of Labor & Industries, SCOTUS granted a writ of certiorari, vacated the judgment of the lower court and remanded the case to the Court of Appeals of Oregon “for further consideration in light of Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Comm’n, 584 US ____ (2018)”.

In which connexion, see Mark Movsesian’s article in the latest Harvard Journal of Law & Public Policy: Masterpiece Cakeshop and the Future of Religious Freedom.

… and a decision on crosses as public memorials

On Thursday, in American Legion v American Humanist Assn No. 17-1717 (U.S. Jun. 20, 2019, SCOTUS ruled 7 to 2 (Bader Ginsburg and Sotomayor JJ dissenting) to allow a World War I memorial known as the “Peace Cross”, erected in 1925 in Bladensburg, Maryland, to remain standing. The American Humanist Association argued that the fact that the memorial stands on public land constituted an endorsement of religion, in breach of the Establishment Clause of the First Amendment.

SCOTUS overturned a ruling by the US Court of Appeals for the Fourth Circuit against the Peace Cross and stated that “For many, destroying or defacing the Cross would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.”

Pedants’ corner

This week, events at the Mansion House prompted the Secret Barrister to tweet: “In reality, the consent, views and cooperation of a complainant will be a strong influencing factor when the police and CPS are deciding whether to charge, but the notion that ‘pressing charges’ is a decision for a complainant alone is a legal fiction up there with the gavel” … ‘Does not support a prosecution’ is not as snappy, granted, but is how such things should accurately be reported”.

Quick links

And finally…

Charity and tax trouble for the Archers? – in which Alan Barr of Brodies LLP suggests that Peggy Woolley’s decision to use £500,000 to set up a charitable trust to encourage sustainable farming by organising a competition between her family members for the best project on their own farms might struggle to meet the public benefit test in charity law. (What he does not consider is whether it might qualify as charitable as a “poor relations trust” – but could any of the possible beneficiaries be regarded as “poor”?)

What with that and Shula running another competition – for an artwork in the village churchyard – without having consulted the DAC or even thought about the likely need for a faculty, it sounds like someone at BBC Birmingham needs a decent legal adviser.


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