On Sunday 8 July the General Synod of the Church of England is scheduled to debate the Rev’d Stephen Trott’s Private Member’s Motion ‘Manifestation of Faith in Public Life’, GS 1859A, which proposes:

‘That this Synod express its conviction that it is the calling of Christians to order and govern our lives in accordance with the teaching of the Holy Scripture, and to manifest our faith in public life as well as in private, giving expression to our beliefs in the written and spoken word, and in practical acts of service to the local community and to the nation’.

The essence of Fr Trott’s submission is that

‘a growing number of Christian organisations and individuals in the UK are … finding that their right to the “practice and observance” of their faith – in a country with a long history of law framed according to Christian concepts of justice – has effectively been disqualified by appeal to an unbalanced understanding of s. 2 of Article 9 [ECHR]’

– and he cites in support of this contention parts of Laws LJ’s judgement in McFarlane v Relate Avon Ltd.

In particular, he takes exception to Laws LJ’s assertion of the subjective nature of religious faith and its binding nature on the believer alone, and the statement that:

‘The promulgation of law for the protection of a position held purely on religious grounds cannot….be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary’ (para 24).

Background

In his background commentary on Trott’s motion, GS 1859B, the Synod’s Secretary General, William Fittall, acknowledges the creation of a degree of uncertainty about what is and is not lawful in this area. He suggests that this is a combination of factors: new, quite broadly framed legal rights; the advent of a more litigious culture; and consideration by the courts and tribunals of disputes that were not previously justiciable.

‘In this complex, new and rapidly evolving situation it can be challenging to discern what exactly is happening, not least when media reports often provide a less than secure basis for understanding the issue of principle or law that may be at issue in any particular case’.

Equality and human rights issues are seldom clear-cut – as demonstrated in the recent Motion to Annul the Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 SI 2661, (Lords Hansard 15 December 2011 at col. 1408) –  but Trott’s perceptions about the direction that the courts are taking on this issue are certainly supported by a recent academic analysis from Russell Sandberg.

The Secretary General also notes that there is a perception that particular laws require the suppression of any manifestations of religious belief when this is not in fact the case – a false perception that is fuelled by the way some public servants interpret the public sector equality duty, particularly in relation to religion. Fittall’s note continues with a contextual analysis of McFarlane and gives examples of the position taken by the Church of England in this area in its submissions to government. He concludes:

‘The consistent approach of the Church of England in submissions on equality and human rights issues has been to argue strongly for all churches and faiths to be able to apply their own policies and have their own rules on eligibility for their equivalent of the priesthood in accordance with the convictions and tenets of that faith, even where these may be at variance with current secular expectations. At the same time our submissions have recognised human rights as a force for justice and the common good, and equality legislation as an area in which Christians have a positive contribution to make to a flourishing society.’

Comment 1: The proposed Synod Declaration

The motion proposes that:

‘The General Synod can place on public record its view that it is a right for any Christian to wear the Cross in public, and to discuss openly our faith in God without fear of prosecution or discrimination.

Whilst General Synod can, and probably will make such a declaration, this is unlikely to change the position in law concerning the issues raised. It is not possible to change the basic tenets of the faith, such as the option to wear the Cross, by such a vote. The non-obligatory right to wear the Cross implies an element of choice, and such a declaration by Synod would in fact support the finding of the courts in Eweida v British Airways plc and in Chaplin v Royal Devon and Exeter Hospital NHS Foundation Trust. However, in its support of the appeals of these cases to the ECtHR, (but not McFarlane or Ladele v London Borough of Islington), the Equality and Human Rights Commission concludes:

‘Manifestation [of religious belief in the workplace] is protected by Article 9 if it withstands careful scrutiny if less aligned with the requirements of the religion or belief, and is motivated or inspired by a genuinely held religion or belief that attains a certain level of seriousness and cogency and is not unreasonable’.

A further complicating factor is that the Church is doubtful on the usefulness of this principle of this “reasonable accommodation” of religious beliefs as a legal norm (though not in relation to conduct prior to litigation), [Fittall at paras. 19 and 20].

Comment 2: The Canons

The motion also suggests a new Canon in the ‘heavyweight’ section A:

‘[to] leave no doubt either in public opinion or in the courts that the representative assembly of the Church … holds firmly to the view that the Christian faith belongs in the public domain, the faith which is uniquely revealed in the Holy Scriptures and to which the Church of England bears witness’.

The inclusion of faith within the public domain is a contentious issue, but not one without significant support. However, a new Canon would have to satisfy the requirements of the Submission of the Clergy Act 1533, as applied in s1(3) of the Synodical Government Measure 1969, that

‘no Canons shall be made or put in execution … which are contrary or repugnant to the … customs, laws or statutes of this realm’.

and the Human Rights Act 1998, which, to the extent that Canons are classified as subordinate legislation, ‘will fall to be read and given effect in a way which is compatible with Convention rights, [Hill, Ecclesiastical Law, para 1.28] Not necessarily a straightforward task.

Then there is the Canon’s limited reference to the sign of the Cross, which: although ‘very precious to those that rightly believe in Jesus Christ’, ‘is no part of the substance of the sacrament [of baptism]’, [B25]; and is an option in the ministry to the sick, [B37}.

Summary

The motion raises issues of both perception and implementation of the law, neither of which is entirely straightforward to address in a general debate. Furthermore, Synod’s Agenda notes that the Fr Trott’s motion had 117 signatures as at July 2011 and was scheduled as contingency business for the February 2012 group of sessions. A year is a long time in human rights law, and 4 September 2012 has been set as the provisional date for the hearing of the principal case referred to in the motion, McFarlane v United Kingdom (no. 36516/10) as well as Ladele v United Kingdom (no. 51671/10), Eweida v United Kingdom (no. 48420/10) and Chaplin v United Kingdom (no. 59842/10).

The timing is unfortunate as these judgements of the ECtHR are most likely to impact on the broader issues of the ‘Manifestation of Faith in Public Life’. Whatever one’s view about the content of the motion, 8 July does not seem to be an ideal time at which to take irrevocable decisions on the issue.