“Outing” gay bishops and Article 8 ECHR

In a thoughtful piece on the ECHR Sexual Orientation Blogspot Paul Johnson, of the University of York, asks Do Church of England ‘gay bishops’ have a human right not to be ‘outed’? In response to the House of Bishops’ Pastoral Guidance on Same-Sex Marriage issued in February 2014, which states that the bishops are unwilling to ordain anyone in a same-sex marriage and that existing clergy should not enter into a same-sex marriage, Peter Tatchell has tweeted that he is “considering outing gay C of E bishops who discipline gay clergy who marry”.  Johnson concentrates on Tatchell’s assertion that

“… people have a right to privacy so long as they are not using their own power and authority to harm other people and when other people are being caused harm and suffering we have a duty to try and stop it”

– and he wonders how Tatchell’s interpretation of the “right to privacy” would stand up in front of the ECtHR.

The issue is complex; and it strikes us that it is as much about the law of defamation as the right to privacy. As to possible defamation, s 1(1) Defamation Act 2013 states that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant” – but s 2(1) provides that “It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”. So it would appear that a claim that could be substantiated could not be defamatory under the terms of the Act. On the other hand, though same-sex partnerships are perfectly legal, wrongly to accuse a C of E bishop of being in a same-sex partnership while at the same time disciplining clergy for entering same-sex marriages would be to accuse him of hypocrisy – which would surely be defamatory even by modern standards.

But Article 8 ECHR is not about defamatory statements: it’s about the right to respect for private and family life. On that point, Johnson concludes that

“From the [Strasbourg] Court’s existing case law it would appear that any complaint to the Court from a Church of England bishop about any failure of the UK to fulfil its positive obligations under Article 8 to prevent discussion of his private life would likely be unsuccessful. This is because such a discussion would likely be judged to involve a public figure and to be an issue of general debate to which the public had a right to be informed. In short, it would be regarded as necessary in a democratic society to ‘override’ the rights of the individual subject to discussion.

A caveat to this might be that the public discussion of a Church of England bishop’s ‘sexual orientation’ might be regarded as insufficiently relevant to the issue of same-sex marriage (it not being ‘hypocritical’, some might argue, to have a homosexual sexual orientation and/or live in a same-sex relationship whilst being opposed to same-sex marriage) and therefore not necessary in a democratic society”.

We agree with Johnson’s overall analysis. But one question that does arise is whether, in an increasingly secularised society, Anglican bishops in general are public figures? In the case of the two Archbishops and the senior diocesans the answer is pretty obviously “yes”. Whether that applies to an obscure suffragan or assistant bishop is more arguable; but it may be indicative that the former Bishop of Gloucester, Peter Ball, has recently been charged not only with two counts of indecent assault but also with misconduct in public office – and all three offences relate to his time as suffragan Bishop of Lewes, not to his time as Bishop of Gloucester. So if a suffragan bishop is indeed a “public officer” for the purposes of a misconduct charge, then maybe his actions would be regarded as of sufficient public interest to override the protection of Article 8 – though whether or not the charge against Ball will ever come to trial remains to be seen.

4 thoughts on ““Outing” gay bishops and Article 8 ECHR

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  2. Regarding ‘outing’ gay bishops who are unwilling to ordain anyone who is in a same-sex marriage, it seems to me that Tatchell is getting his law and his morality mixed up.

    It may be morally wrong for a gay bishop to refuse to ordain a person who is in a same-sex marriage (in itself or because of hypocrisy), but acting immorally does not deprive one of one’s human rights.

    He may support ‘outing’ gay bishops by citing his own ECHR Article 10 Freedom of Expression, supported by the Defamation Act 2013 s4 (publication on a matter of public interest) – or, indeed, he might argue that since being gay is not shameful or liable in and of itself to expose the bishops to serious harm, revealing that the bishops are gay cannot be defamatory (s1: A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant), any more than revealing that they are an ardent supporter of Accrington Stanley would be.

    In addition to arguing that he has a right to ‘out’ the bishops on his own account (his human rights, and that fact that it’s a matter of public interest), he can also argue that it falls within an Article 8(2) exception in any case: protection of public morality (against hypocrisy) and also protection of the rights of others (the people who wanted to be priests).

    Regarding whether or not the bishops are public figures, I don’t (personally) think it matters. DA 2013 s4 states “matter of public interest”, not “public figure”. The bishops’ sexuality would not be a matter of public interest normally, so would be protected – but it becomes one when it is relevant to the way they act in a matter of public interest. Lady Hale talks about ‘public interest’ in Campbell v MGN Ltd [2004] UKHL 22, and one factor in deciding whether Ms Campbell’s rights had not been infringed (by the published article) was that Ms Campbell had presented herself to the public as a person who was not addicted to drugs. The article revealed that this was not, in fact, the truth. The public had a right to know it had been lied to, and to have Ms Campbell’s hypocrisy exposed.

    Tatchell would presumably argue that the gay bishops are in an analogous position to Ms Campbell: they are presenting themselves as not gay, and are penalising gay people for being gay (non-gay marriage being fine), hence hypocrisy, hence public interest.

    The census from 2011 states that just under 60% of the population identified as Christian – which would support an assertion that how senior Christian figures discharge their duties, and their own private vs public morality, is a matter of public interest.

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